Supreme Court of India
GURA SINGHversusTHE STATE OF RAJASTHAN
- Citation
- 2000 INSC 574
- Decided
- 6 December 2000
- Disposal
- Dismissed
- Bench
- K T THOMAS
Holding
A voluntary extra‑judicial confession, even when corroborated only by the recovery of the weapon and a blood‑stained sheet, is sufficient to sustain a conviction, and testimony of a hostile witness may be considered if credible.
Summary
Gura Singh was convicted of murdering his father under IPC 302. The prosecution relied on the appellant’s extra‑judicial confession to several relatives (PW 2, 5, 6, 7) and on the recovery of the murder weapon and a blood‑stained sheet disclosed by the accused. Some of the witnesses were later declared hostile, and the defence argued that the confession and forensic evidence were unreliable. The Supreme Court held that a voluntary extra‑judicial confession is admissible and can support a conviction even if some witnesses are hostile, that a hostile witness’s testimony is not automatically excluded, and that the forensic evidence was sufficient despite the serologist’s inability to determine the blood’s origin. Accordingly, the conviction and life sentence were upheld and the appeal dismissed.
Issues considered
- The admissibility and evidentiary value of a voluntary extra‑judicial confession.
- The effect of a witness being declared hostile on the admissibility of his testimony.
- Whether the failure to determine the origin of blood stains or the non‑mention of their dimensions defeats the prosecution’s case.
- The sufficiency of the recovered weapon and other incriminating articles as corroboration of the confession.
Legislation cited
- Indian Evidence Act, 1872s. 142, s. 154, s. 155, s. 27, s. 45
- Indian Penal Code, 1860s. 300, s. 302
Subjects
extra‑judicial confessionhostile witnessIndian Evidence ActSection 154forensic evidenceblood stainsmurderIPC 302corroborationconviction
Judgment
A GURA SINGH
v.
THE STATE OF RAJASTHAN
DECEMBER 6, 2000
B [K.T. THOMAS AND R.P. SETHI JJ.]
Penal Code, 1872-Section 302- Conviction of-Prosecution's case
based on extra judicial confession-All witnesses closely related to the
appellant-Confession made immediately after the occurrence and not
C procured under any undue influence. coercion or pressure-Main witnesses
turned hostile-But voluntary disclosures statements of other prosecution
witnesses led to recovery of the weapons of offence and other incriminating
articles- Held, conviction based on the testimony of other witnesses is justified.
D Extra judicial confession-Witness did not concur oniy on a post event
detail -Witness declared hostile by the prosecution-Court gave permission
to the prosecutor to cross-examine the witness- Held, witnesses not turned
hostile-Further, witness was wrongly permitted to be cross-examined- -
Evidence Act 1872 section 154.
E Evidence Act. 1872-Sections 27 and 45-Recovery of sheet and other
items-On basis of disclosure statement of accused Sheet and other items
stained with blood ·-Due to lapse of time serologist failed to determine origin
of blood-Non-mentioning of the dimensions of the stains of the blood on the
sheet and other articles---Held, the accused cannot claim any benefit.
Appellant was committed to the sessions court for trial under section
302 of the Indian Penal Code. The prosecution case was based upon the extra
judicial confession. After examining the prosecution witnesses, the trial court
convicted the appellant and awarded life imprisonment. Appellant filed an
appeal. It was contended that as the main witnesses turned hostile, the
conviction based upon their testimony was not justified, but High Court
dismissed it. Hence, this appeal.
Dismissing the appeal the Court
HELD: I.I. Extra-judicial confession, if true and voluntary can be relied
upon by the court to convict the accused for the commission of the crime
408
Gl:RA Sl"'UH v STAii·: OF RAJAS IHA"! 409
alleged. Despite inherent weakness of extra judicial confession as an item A
of evidence, it cannot be ignored when shown that such confession was made
before a person who has no reason to state falsely and to whom it is made
in the circumstances which tend to support the statement. 1412-E]
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 11954] SCR
1098; Maghar Singh v. State of Punjab. AIR (1975) SC 1320; :Varayan Singh B
v. State of MP., AIR (1985) SC 1678; Kishore Chandv. State of HP .. AIR
(1990) SC 2140; Ba/dev Raj v. State of Haryana, AIR (1991) SC 37; Piara
Singh v. State of Punjab. AIR (1977) SC 2274 and Madan Gopal Kakkad
v. Naval Dubey & Anr., JT (1992) 3 SC 270, referred to.
c
1.2. In the instant case, PW 5 was declared hostile. The appellant made
extra judicial confession to PW 7 when he was arrested by the police and
any confession made by him thereafter, is inadmissible in evidence. Thus, no
reliance can be placed upon their testimony for the purposes of deciding as
to whether the appellant had made the extra judicial confession or not. The
time, the manner and the circupistances prove that the appellant had made D
a voluntary extra judicial confession before the witness without any fear,
favour or coercion. 1414-B, C, DI
1.3. The prosecution witness did not concur only on a post-event detail
made by the public prosecutor. Therefore, it was too insufficient for the public E
prosecutor to proclaim that the witness made a volteface and became totally
hostile to the prosecution. Further the permission granted by the trial court
to cross-exa.mine allegedly on the ground of his being hostile was wrongly
permitted. More so, the permission granted 'll.!Jd utilised for cross-examination
was limited to the extent of the time of lodging the first information report
and not with respect to the factum of his deposition in so far as it relates F
to the making of extra judicial confession by the appellant. 1418-D; 414-Gf
1.4. There was sufficient evidence even in the absence of testimony of
PW 5 and 7 to hold that the appellant had made a voluntary extra judicial
confession before PWs 2 and 6 without undue influence, pressure, promise G
or inducement and conviction based on these testimony is justified. The
witnesses are closely related to the appellant in whom, under the normal
circumstances, he would have confided, hoping help, protection and being
safeguarded. The confession was made instantaneously, immediately after
the occurrence and was not procured under any undue influence, coercion
or pressure. 1413-Ff H
410 SUPREME l'Ol'RT REPORTS [2000] SUPP. 5 S.C.R.
A 1.5. The serologist and chemical examiner found that the chadar (sheet)
seized in consequence of the disclosure statement made by the appellant was
stained with human blood. With the lapse of time the classification of the
blood could not be determined; thus, no bonus is conferred upon the accused
to claim any benefit. Therefore, the court is justified in holding the
B circumstance as proved beyond doubt against the appellant. (421-D, El
Prabhu Babaji Navle v. State of Bombay, AIR (1956) SC SI; Raghave
Prapanna Tripathi v. State of Uttar Pradesh, AIR (1963) SC 74; Shankarlal
Gyarasilal Dixit v. State cf Maharashtra. 11981( 2 SCR 384 and Kansa Behera
v. State uf Orissa, AIR (1987) SC 1507, cited.
c State of Rajasthan v. Teja Ram & Ors., 1199913 SCC 507, relied on.
1.6. Mere doubt sought to be created on the non-mention of dimensions
of blood stains by itself is not sufficient to entitle the accused to the benefit
of reasonable doubts. Non-mentioning of the dimensions of the stains of blood
D may assume importance in cases where the accused pleads a defence or
alleges the malafides of the prosecution of fabricating the evidence to wrongly
involve him in the commission of the crime. (422-E, Fl
Kansa Behera v. State of Orissa, AIR (1987) SC 1507, distinguished.
E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1184ofl998.
From the Judgment and Order dated 17.1.97 of the Rajasthan High Court
in D.B. Crl. A. No. 299 of 1978.
F Doongar Singh, V.J. Francis, P.J. Jose and Jenis Francis for the Appellants.
Sushi! Kumar Jain. A. Misra and A.P. Dhamija for the Respondents.
The Judgment of the Court was delivered by
G SETHI, J. In an otherwise quite and small village under Police Station
Karanpur, District Sriganganagar (Rajasthan) an unusual spine chilling
occurrence took place in the wee hours of 7th July, 1976 resulting in the
commission of an offence of patricide. The killer is the appellant and victim
'1is unfortunate father. Such a heinous crime was committed on a trifle issue
which commenced with the altercation between the father and the son. Father
H reminded the appellant of his wasteful expenditure which was not to the liking
GURA SINGH v. STATE OF RAJASTHAN [SETHI, J.] 411
of the son who pulled down the deceased on the ground and smashed his A
skull with a Kassi (Dagger). On the next morning the appellant went to Jamail
Singh (PW2) and confessed about the commission of the crime and the
manner in which the injuries were caused resu Iting in the death of the deceased
Bhajan Singh. In the company of Jamail Singh (PW2), the appellant approached
Billor Singh (PW5), Niranjan Singh (PW6) and Joginder Singh (PW7) making B
before them the extra judicial confession and requesting them to help him.
Jamail Singh (PW2) and Billor Singh (PWS) thereafter called Amar Singh,
Panch. Jarnail Singh lodged the First Information Report (Exhibit P-2) at 12.30
p.m. at Police Station, Karanpur which was at a distance of 8 kilometers from
the place of occurrence. The appellant was arrested on the same day. He made
the disclosure statement (Exhibit P2 I) consequent to which Kassi, the weapon C
of offence (Exhibit Pl9), was recovered. Again on 12.7.1976 the appellant
made another disclosure statement in consequence of which a Chadar (sheet)
(Exhibit P-12) stained with blood was recovered vide (Exhibit P-22).
The appellant was committed to the Court of Sessions on I0.2.1977 for
standing his trial under Section 302 IPC. After the prosecution produced 12 D
witnesses, the trial court vide its judgment dated 9.8.1978 held the appellant
guilty and convicted him under Section 302 !PC. On the facts and circumstances
of the case the appellant was awarded life imprisonment. The appeal filed by
the appellant against the judgment of the trial court was dismissed by a
Division Bench of the High Court vide the judgment impugned in this appeal. E
Before appreciating the contentions raised on behalf of the appellant by
his counsel, it is useful to note down the conspectus under which the offence
was committed. It is also necessary to note the relationship of the witnesses
with the deceased and the appellant. Bhajan Singh, the unfortunate victim of
the crime had two wives. The appellant is the son from the second wife Ms. F
Har Kaur who was previously married to one Kapur Singh. Joginder Singh
(PW7) is the son and Niranjan Singh (PW6) is the son-in-law from the first
wife of the victim. Bhajan Singh, deceased had a brother, namely, Rood Singh
whose son is Jamail Singh (PW2). Bhajan Singh, deceased was in possession
of 105 Bighas of land at Badopal (Rajasthan) where he used to live with the G
appellant. Joginder Singh (PW7) was living in Punjab where he looked after
40 acres of the other land belonging to Bhajan Singh and his family. Some
altercation is stated to have taken place between Bhajan Singh and the
appellant some days before the occurrence regarding expenditure incurred by
the accused in the marriage of his sister-in-law and installation of a hand
pump. On the d'ay of occurrence which led to the killing of the deceased, the H
412 'lCPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A conversation commenced on the same issue which was not taken of kindly
by the appellant who inflicted the Kassi blow at 01 a.m. on 7th July, 1976
resulting in the death of the deceased.
Admittedly, there is no direct evidence of eye-witnesses. The case of
the prosecution is primarily based upon the extra judicial confession of the
B appellant coupled with the discGvery" of new facts leading to recovery of
weapon of offence and other incriminating articles. Prosecution has also relied
upon the existence of a motive which infuriated the deceased to commit the
crime. It is, however, undisputed that the death of Bhajan Singh was homicidal
and the manner in which the injuries were inflicted on the vital parts of his
C body shows the commission of crime of murder within the meaning of Section
300 IPC not falling under any of the exceptions specified therein.
Mr. Doongar Singh, the learned Advocate who appeared for the appellant
submitted that extra-judicial confession allegedly made by the appellant has
not been proved by the prosecution beyond all reasonable doubts. According
D to him the appellant has wrongly been roped into the charge of murder of his
father by the prosecution witnesses with oblique motive of usurping the
property left by the deceased. It is contended that as the main witnesses have
turned hostile, the conviction based upon their testimony is not justified.
E It is settled position of law that extra-judicial confession, if true and
voluntary, it can be relied upon by the court to convict the accused for the
commission of the crime alleged. Despite inherent weakness of extra judicial
confession as an item of evidence, it cannot be ignored when shown that
such confession was made before a person who has no reason to state falsely
and to whom it is made in the circumstances which tend to support the
F statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh, [1954] SCR 1098, this Court again in Maghar Singh
v. State of Punjab, AIR (l 975) SC 1320 held that the evidence in the form of
extra-judicial confession made by the accused to witnesses cannot be alwaylj
termed to be a tainted evidence. Corroboration of such evidence is required
G only by way of abundant caution. If the court believes the witness before
whom the confession is made and is satisfied that the confession was true
and voluntarily made, then the conviction can be founded on such evidence
alone. In Narayan Singh v. State of MP., AIR (1985) SC 1678 this Court
cautioned that it is not open to the court trying the criminal case to start with
presumption that extra judicial confession is always a weak type of evidence.
H It would depend on the nature of the circumstances, the time. when the
<il'RA SINUll v. STATE OF RAJASTflA'\l [SETHL J J 413
confession is made and the credibility of the witnesses who speak for such A
a confession. The retraction of extra-judicial confession which is a usual
phenomenon in criminal cases would by itself not weaken the case of the
prosecution based upon such a confession. In Kishore Chand v. State of
H.P., AIR (1990) SC 2140 this Court held that an unambiguous extra judicial
confession possesses high probative value force as it emanates from the B
person who committed the crime and is admissible in evidence provided it is
free from suspicion and suggestion of any falsity. However. before relying on
the alleged confession, the court has to be satisfied that it is voluntary and
is not the result of inducement, threat or promise ervisaged under Section 24
of the Evidence Act or was brought about in suspicious circumstances to
circumvent Sectionlr'25 and 26. The Court is required to look into the C
surrounding circumstances to find out as to whether ~uch confession is not
inspired by any improper or collateral consideration \)r circumvention of law
suggesting that it may not be true. All relevant circumstances such 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 scrutinised. To the same effect
is the judgment in Ba/dev Raj v. State of Haryana, AIR (1991) SC 37. After D
referring to the judgment in Piara Singh v. State of Punjab, AIR (1977) SC
2274 this Court in Madan Gopa/ Kakkad v. Naval Dubey & Anr., JT (1992)
3 SC 270 held that the extra judicial confession which is not obtained by
coercion, promise of favour or false hope and is plenary in character and
voluntary in nature can be· made the basis for conviction even without E
corroboration.
In the instant case the extra-judicial confession made by the appellant
has been sought to be proved by the testimony of PWs 2, 5, 6 and 7. As
noticed earlier, all the aforesaid witnesses are closely related to the appellant
in whom, under the normal circumstances, he would have confided hoping F
help, protection and being safeguarded. The confession has been made
instantaneously immediately after the occurrence and is not alleged to have
been procured under any undue influence, coercion or pressure. Though the
•. appellant expected a favour from the witnesses, yet none of them is stated
to have promised to favour him in case he made a truthful statement regarding G
the occurrence. Except the alleged usurpation of property of the deceased by
PWs 6 and 7, there is no other suggestion which could tend to show that
their evidence is tainted and that the extra judicial confession was not
voluntarily made by the appellant.
Assailing the finding of the High Court, the learned counsel app~aring H
414 SUPREME COCRT REPORTS [2000] SCP!'. 5 S.C.R.
A for the appellant has submitted that since PWs 2, 5 and 7 have been declared
hostile and PW6 is an interested witness, the extra judicial confession attributed
to the appellant cannot be held to have been by the prosecution as a fact.
It is true that PWS has been declared hostile and no reliance can be
B placed upon his testimony for the purposes of deciding as to whether the
appellant had made the extra judicial confession or not. Similarly. the statement
of PW 7 Joginder Singh to the extent it refers to the appellant having made
extra judicial confession is inadmissible in evidence as admittedly by the time
this witness reached the place of occurrence. the appellant had been arrested
by the police and any confession m;ide by him thereafter is inadmissible in
C evidence. It is in evidence that the appellant was admittedly arrested before
the arrival of Joginder Singh (PW7) in the village. However, there is reliable
evidence of Niranjan Singh (PW6 ) which has been believed by both the
courts below and we have not been persuaded to disagree with the aforesaid
findings. We are also not impressed by the argument that PW6 had made the
D statement allegedly for depriving the appellant from succession to the estate
of Bhajan Singh, deceased. The time, the manner and the attending
circumstances clearly prove that the appellant had made a voluntary extra
judicial confession before this witness without any fear, favour or coercion.
E The testimony of PW2 has been assailed on the ground that as he was
allegedly declared hostile by the Public Prosecutor, no reliance can be placed
upon his testimony. We have scrutinised the statement of PW2 and find that
he had fully supported the case of prosecution in all material particulars. In
his examination-in-chief the witness after vividly explaining the manner in
which the extra judicial confession was made, stated that after walking on foot
F for about 4 kilometers he, in the company of others, reached Police Station
Karanpur at about 12.00 noon and lodged the report but the Police Station
did not register a case on the pretext that it was a family matter and that the
report would be registered only after making an enquiry in the village. Finding
such a statement to be resiting from the earlier testimony, the Public Prosecutor
G sought the permission of the court to declare the witness hostile and ''cross-
examine him on the ground that he had not stated that Exhibit P-2 was not
registered at once". The trial court obliged the Public Prosecutor by permitting
him to cross-examine to that extent. The cross-examination by the Public
Prosecutor is restricted to the lodging of the First Information Report and not
with respect to the factum of his deposition in so far as it relates to the making
H of extra-judicial confession by the appellant. The defence also appears to be
GURA SINGH v. STATE OF RAJASTHAl" [SETHI. J.J 415
conscious of the fact that the Public Prosecutor had sought the permission A
to cross-examine the witness to a limited extent. The witness was subjected
to lengthy and detailed cross-examination with respect to the making of extra
judicial confession by the appellant. The trial as well as the High Court rightly
relied upon his testimony to hold that the appellant had voluntarily made the
extra judicial confession to the aforesaid witness.
B
There appears to be misconception regarding the effect on the testimony
of a witness declared hostile. It is a misconceived notion that merely because
a witness is declared hostile his entire evidence should be excluded or
rendered unworthy of consideration. This Court in Bhagwan Singh v. State
of Haryana, AIR ( 1976) SC 202 held that merely because the Court gave C
permission to the Public Prosecutor to cross- examine his own witness
describing him as hostile witness does not completely efface his evidence.
The evidence remains admissible in the trial and there is no legal bar to base
conviction upon the testimony of such witness. In Rabindra Kumar Dey v.
State of Orissa, AIR 1977 SC 170 it was observed that by giving permission
to cross-examine nothing adverse to the credit of the witness is decided and D
the witness does not become unreliable only by his declaration as hostile.
Merely on this ground his whole testimony cannot be excluded from
consideration. In a criminal trial where a prosecution witness is cross-examined
and contradicted with the leave of the Court by the party calling him for
evidence cannot, as a matter of general rule, be treated as washed off the E
record altogether. It is for the court of fact to consider in each case whether
as a result of such cross-examination and contradiction the witness stands
discredited or can still be believed in regard to any part of his testimony. In
appropriate cases the court can rely upon the part of testimony of such
witness if that part of the deposition is found to be creditworthy.
F
The terms "hostile", "adverse" or "unfavourable" witnesses are alien to
the Indian Evidence Act. The terms "hostile witness", "adverse witness",
"unfavourable witness", "unwilling witness" are all tem1s of English Law. The
rule of not permitting a party calling the witness to cross examine are relaxed
under the common law by evolving the terms "hostile witness and G
unfavourable witness'". Under the common law a hostile witness is described
as one who is not desirous of telling the truth at the instance of the party
calling him and an unfavourable witness is one called by a party to prove a
particular fact in issue or relevant to the issue who fails to prove such fact,
or proves the opposite test. In India the right to cross-examine the witnesses
by the party calling him is governed by the provisions of the Indian Evidence H
416 SL:PREME COURT Rl'PORTS [2000] SUPP. 5 S.C.R.
A Act, 1872. Section l 42 requin:s that leading questions cannot be put to the
witness in examination-in-chief or in re- examination except with the permission
of the court. The court can, however, permit leading question as to the matters
which are introductory or undisputed or which have, in its opinion, already
been sufficiently proved. Section 154 authorises the court in its discretion to
B permit the person who calls a witness to put any question to him which might
be put in cross-examination by the adverse party. The courts are, therefore,
under a legal obligation to exercise the discretion vesting in them in a judicious
manner by proper application of mind and keeping in view the attending
circumstances. Permission for cross-examination in terms of Section 154 of the
Evidence Act cannot and should not be granted at the mere asking of the
C party calling the witness. Extensively dealing with the terms .. hostile, adverse
and unfavourable witnesses" and the object of the provisions of the Evidence
Act this Court in Sat Paul v. Delhi Administration, AIR (1976) SC 294 held:
"To steer clear of the controversy over the meaning of the terms
'hostile' witness, 'adverse' witness, 'unfavourable' witness which
D had given rise to considerable difficulty and conflict of opinion in
England, the authors of the Indian Evidence Act, 1872 seem to have
advisedly avoided the use of any of those terms so that, in India, the
grant of permission to cross-examine his own witness by a party is
not conditional on the witness being declared ·adverse' or 'hostile'.
E Whether it be the grant of permission under Sec.142 to put leading
questions. or the leave under Section 154 to ask questions which
might be put in cross- examination by the adverse party, the Indian
Evidence Act leaves the matter entirely to the discretion of the court
(see the observations of Sir la\1,rence Jenkins in Baikuntha Nath v.
Prasannamoyi. AIR (1922) PC 409. The discretion conferred by Section
F 154 on the court is unqualified and untrammelled, and is apart from
any question of 'hostility'. It is to be liberally exercised whenever the
court from the witnesses's demeanour, temper, attitude, bearing, or the
tenor and tendency of his answers, or from a perusal of his previous
inconsistent statement, or otherwise. thinks that the grant of such
permission is expedient to extract the truth and to do justict:. Tht:
G grant of such permission does not amount to an adjudication by the
court as to the veracity of the witness. Therefort:, in the ordt:r granting
such permission, it is preferable to avoid the use of such expressions,
such as 'declared hostile', 'declared unfavourable', the significance of
which is still not free from the historical cobwebs which, in their wake
H bring a misleading legacy of confusion, and conflict that had so long
GVRA SINGH v. STATE OF RAJASTHAN [SETHI. J.] 417
vexed the English Courts. A
It is important to note that the English statute differs materially from
the law contained in the Indian Evidence Act in regard to cross-
examination and contradiction of his <,>wn witness by a party. Under
the English Law, a party is not permitted to impeach the credit of his
own witness by general evidence of his bad character, shady B
antecedents or previous conviction. In India, this can be done with
the consent of the court under S.155. Under the English Act of 1865,
a party calling the witness, can 'cross-examine' and contradict a
witness in respect of his previous inconsistent statements with the
leave of the court, only when the court considers the witness to be C
'adverse'. As already noticed, no such condition has been laid down
in Ss.154 and 155 of the Indian Act and the grant of such leave has
been left completely to the discretion of the court, the exercise of
which is not fettered by or dependent upon the 'hostility' or
'adverseness' of the witness. In this respect, the Indian Evidence Act
is in advance of the English Law. The Criminal Law Revision Committee D
of England in its I Ith Report, made recently, has recommended the
adoption of a modernised version of S.3 of the Criminal Procedure
Act, 1865, allowing contradiction of both unfavourable and hostile
witnesses by other evidence without leave of the court. The Report
is, however, still in favour of retention of the prohibition on a party's E
impeaching his own witness by evidence of bad character.
The danger of importing, without due discernment, the principles
enunciated in ancient English decisions, for, interpreting and applying
the Indian Evidence Act has been pointed out in several authoritative
pronouncements. Jn Prafu/la Kumar Sarkar v. Emperor, ILR 58 Cal F
1404 =AIR (1931) Cal. 40 I (FB) an eminent Chief Justice, Sir George
Rankin cautioned, that 'when we are invited to hark back to dicta
delivered by English Judges, however, eminent, in the first half of the
nineteenth century, it is necessary to be careful lest principles be
introduced which the Indian Legislature did not see fit to enact'. It
was emphasised that these departures from English Law 'were taken G
either to be improvements in themselves or calculated to work better
under Indian conditions'.
xxx xxx xxx xxx
From the above conspectus, it emerges clear that even in a criminal H
418 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.
A prosecution when a witness is cross-examined and contradicted with
the leave of the court, by the party calling him, his evidence cannot,
as a matter of law, be treated as washed off the record altogether. It
is for the Judge of fact to consider in each case whether as a result
of such cross-examination and contradiction, the witness stand
thoroughly discredited or can still be believed in regard to a part of
B his testimony. If the Judge finds tliat in the process, the credit of the
witness has not been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with due caution
and care, accept, in the light of the other evidence on the record, that
part of his testimony which he finds to be creditworthy and act upon
c it. If in a given case, the whole of the testimony of the witness is
impugned, and in the process, the witness stands squarely and totally
discredited, the Judge should, as a matter of prudence, discard his
evidence in toto."
We deprecate the manner in which the prayer was made by the Public
D Prosecutor and permission granted by the trial court to cross- examine Jarnail
Singh (PW2) allegedly on the ground of his being hostile. On facts we find
that the said witness was wrongly permitted to be cross-examined. It was only
on a post-event detail that he did not concur with the suggestion made by
the Public Prosecutor. That single point, in our opinion, was too insufficient
for the Public Prosecutor to proclaim that the witness made a volteface and
E became totally hostile to the prosecution. Otherwise also the permission
granted and utilised for cross-examination was limited to the extent of the time
of lodging the First Information Report (Exhibit P-2). There is no reason to
disbelieve PW2 who is closely related to the appellant and has no reason to
falsely implicate particularly when no inducement, threat or promise is allegedly
F given or assured.
We are satisfied that there was sufficient evidence even in the absence
of testimony of PWs 5 and 7 to hold that the appellant had made a voluntary
extra judicial confession before PWs 2 and 6 without undue influence, pressure,
promise or inducement. Such a statement was made by the appellant
G instantaneously immediately after the occurrence to witnesses who are
independent and reliable.
We are also satisfied that the prosecution has proved beyond doubt the
recovery of the blood stained Chadar (sheet) belonging to the appellant and
Kassi, the weapon of offence, on the basis of the voluntary disclosure
H statements made by him. Shambu Singh (PWl2) has deposed that after his
GURA SII\<ill v. STATE OF RAJASTllAN [SETHI. J.J 419
arrest vide Memo (Exh.P-14), the shoes of the appellant stained with human A
blood were seized and upon his information Kassi (Exhibit P-21) (Article A-
l) was recovered from inside his house. Recovery is proved by the testimony
of Niranjan Singh (PW6) and Joginder Singh (PW7) besides the IO (PW2). On
12th July, 1976 the appellant gave information about the chadar (sheet) which
was recorded as Exhibit P-22 and in presence of Ram Singh, (PW3) he produced B
the same which was hidden by him in his house kept in a pitcher (earthen
water pot). The recovery memo was prepared and signed by Ram Singh (PW
3), Jarnail Singh (PW2) and Shambu Singh (PWl2). Chadar was stained with
human blood. Both the trial as well as the High Court rightly held that the
prosecution has succeeded in proving the making of the disclosure statements
by the appellant and conseque11t recovery of the weapon of offence and C
chadar at his instance.
A hair was found studded with Kassi, the weapon of offence, recovered
at the instance of the accused after making the disclosure statement. Hair from
the skull and the scalp of the deceased were also seized by the investigating
agency. All the three hair were sent to the Forensic Science Laboratory who D
upon analysis of morphologicai examination found all the hair to be of human
head. Various other articles such as chadar (sheet) turban, pair of shoes, the
Kassi were also sent to the Forensic Science Laboratory for analysis. The
Forensic Science Laboratory in its report submitted:
"Blood was detected in exhibit nos. I, 2 (from packet marked '!'), 3, 4 E
(from '2'), 5 (from '4'), 7 (from '6'), 8 (from '7'), 9 (from '8') and IO
(from '9').
Blood stained cuttings/samples from the exhibits along with their
respective controls wherever available have been forwarded to the
serologist for serological examination. F
Samples from exhibit no. 5 (from '4') and 6 (from '5') have been
forwarded to the Physics Division for soil examination.
Exhibit no. I 0 (from '9') has been forwarded as-such to the serologist
for serological examination."
G
The Serologist and Chemical Examiner to the Government of India found
Chadar (sheet) and other items to be stained with human blood. However, the
origin of blood stains on items, pair of shoes and Kassi could not be determined
on account of disintegration with the lapse of time.
Learned counsel for the appellant subrr1tted that as the origin of the H
420 SUPREME COCRT REPORTS (2000) SUPP. 5 S.C.R.
A blood cou Id not be determined, the appellant was entitled to be acquitted, as
according to him the prosecution has failed to connect the accused with the
commission of C"ime. In support of his contention he relied upon the judgment
of this Court in Prabhu Babaji Nav/e v. State of Bombay, AIR (I 956) SC 51;
Raghav Prapanna Tripathi v. State of Uttar Pradesh, AIR (1963) SC 74;
B Shankar/al Gyarasilal Dixit v. State of Maharashtra, [ 1981] 2 SCR 384 and
Kansa Behera v. State of Orissa, AIR (1987) SC 1507.
The effect of the failure of the serologist to detect the origin of blood
due to disintegration in the light of the Judgments in Prabhu Babaji and
Raghav Prapanna Tripathi's cases was considered by this Court in State of
C Rajasthan v. Teja Ram & Ors., [1999] 3 SCC 507 wherein it was held:
"Failure of the Serologist to detect the origin of the blood due to
disintegration of the serum in the meanwhile does not mean that the
blood stuck on the axe would not have been human blood at all.
Sometimes it happens, either because the stain is too insufficient or
due to haematological changes and plasmatic coagulation that a
D
serologist might fail to detect the origin of the blood. Will it then mean
that the blood would be of some other origin? Such guesswork that
blood on the other axe would have been animal blood in unrealistic
and far-fetched in the broad spectrum of this case. The effort of the
criminal court should not be to prowl for imaginative doubts. Unless
E the doubt is of a reasonable dimension which a judicially conscientious
mind entertains with some objectivity, no benefit can be claimed by
the accused.
Learned counse 1for the accused made an effort to sustain the rejection
of the abovesaid evidence for which he cited the decisions in Prabhu
F Babaji Navle v. State of Bombay, AIR (1956) SC 51 and Raghav
Prapanna Tripathi v. State of U.P., AIR (1963) SC 74. In the former,
Vivian Bose, J. has observed that the chemical examiner's duty is to
indicate the number of bloodstains found by him on each exhibit and
the extent of each stain unless they are too minute or tcw- numerous
to be described in detail. It was a case in which one circumstance
G
projected by the prosecution was just one spot of blood on a dhoti.
Their Lordships felt that "blood could equally have spurted on the
dhoti of a wholly innocent person passing through in the circumstances
described by us earlier in the judgment". In the latter decision, this
Court observed regarding the certificate of a chemical examiner that
H inasmuch as the bloodstain is not proved to be of human origin the
GURA SINGH V. ST ATE or RAJASTHAN [SETHI, J.) 421
circumstances has no evidentiary value 'in the circumstances' A
connecting the accused with the murder. The further part of the
circumstances in that case showeel •liat a shirt was seized from a
drycleaning establishment and the proprietor of the said establishment
had testified that when the shirt was given to him for drycleaning, it
was not bloodstained.
B
We are unable to find out from the aforesaid decisions any legal ratio
that in all cases where there was failure of detecting the origin of the
blood, the circumstances arising from recovery of the weapon would
stand relegated to disutility. The observations in the aforesaid cases
were made on the fact situation existing therein. They cannot be C
imported to a case where the facts are materially different."
In view of the authoritative pronouncements of this Court in Teja Ram's
case (supra), we do not find any substance in the submissions of the learned
counsel for the appellant that in the absence of the report regarding the origin
of the blood, the trial court could not have convicted the accused. The D
Serologist and Chemical Examiner has found it that the Chadar (sheet) seized
in consequence of the disclosure statement made by the appellant was stained
with human blood. As with the lapse of time the classification of the blood
could not be determined, no bonus is conferred upon the accused to claim
any benefit on the strength of such a belated and stale argument. The trial
court as well as the High Court were, therefore, justified in holding this E
circumstance as proved beyond doubt against the appellant.
Taking advantage of the non-mentioning of the dimensions of the stains
of the blood on the chadar (sheet) and other articles and relying upon the
observations made in Kansa Behera v. State ofOrissa, AIR (1987) SC 1507,
the learned counsel for the appellant has submitted that such a failure is fatal F
for the case of the prosecution and a missing link in the chain of circumstances
allegedly proved against him. This submission is also of no help to the
accused-appellant in the present case. In Kansa Behera 's case (supra), the
allegations of the prosecution were that the deceased therein had some
dispute with one Jitrai Majhi and is brothers. Jitrai Majhi was alleged to have G
got the deceased killed through the instrumentality of Kansa Behera. There
was no eye--witness and the case of the prosecution was based only upon
circumstantial evidence. One of the circumstance relied upon by the prosecution
was that the dhoti and shirt recovered from the possession of the appellant,
when he was arrested, were found to be stained with human blood. In that
context this Court observed: H
422 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A "Few small blood-stains on the clothes of a person may even be of
his own blood specially if it is a villager putting on these clothes and
living in villages. The evidence about the blood group is only
conclusive to connect the blood-stains with the deceased. That
evidence is absent and in this view of the matter, in our opinion, even
this is not a circumstance on the basis of which any inference could
B be drawn."
The position in the instant case is totally different inasmuch as the
blood stained chadar (sheet) was recovered after about 5 days from the date
of the arrest of the appellant which he had concealed in a pitcher and kept
C in his house. But for the disclosure statement made by the appellant, the fact
of the chadar (sheet) belonging to him having blood-stains could not have
been discovered. It is worth mentioning that before making observations in
the case, the Court noted that as regards the recovery of shirt and dhoti, there
was no clear evidence to indicate that the accused was wearing those clothes
at the time of incident.
D
Otherwise also the observations made in Kansa Behera's case were
confined to the facts of that case alone and were not intended to be universally
applicable to all cases. The extent of the dimensions of the blood-stains has
to be determined in the context of the circumstances of each case. It would
be appreciated if the extent is mentioned in the seizure memos but failure to
E give its details in such memo would not entitle the accused to claim the
rejection of the prosecution case on that ground alone. Non mentioning of
the dimensions of the stains of blood may perhaps assume importance in
cases where the accused pleads a defence or alleges the malafides of the
prosecution of fabricating the evidence to wrongly involve him in the
F commission of the crime. The credibility of such a circumstance cannot be
weakened only by referring to the non mention of dimensions of blood stains
on the clothes particularly when its adverse effect on the prosecution case
is not pointed out. Mere doubt sought to be created on the non mention of
dimensions of blood stains by itself is not sufficient as admittedly the accused
is entitled to the benefit of only reasonable doubts. We have found, in this
G case, on facts that this circumstance is fully proved and does not create a
doubt, much less a reasonable doubt so far as the commission of the crime
by the accused is concerned.
We have no doubt in our mind that the appellant had made confessional
statement to PWs 2 and 6, made voluntary disclosure statements, led to the
H recovery of the weapon of offence' and chadar (sheet) which was concealed
GURA SINGH v. STATE OF RAJASTHAN [SETHI, J.] 423
by him in his house, Kassi studded with hair which was compared with the A
hair taken from the body of the deceased and upon analysis was found to
be of human hair and his chadar (sheet) was stained with human blood. The
aforesaid circumstances were sufficient to connect the accused with the
commission of crime for which he was rightly held guilty, convicted and
sentenced by the trial court which was confirmed by the High Court.
B
There is no merit in the appeal which is accordingly dismissed.
N.J. Appeal dismissed.
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