SAHIB SINGHversusSTATE OF HARYANA

                              SAHIB SINGH                                       A
                                     v.
                         STATE OF HARYANA

                              JULY 28, 1997

          [M.K. MUKHERJEE AND S. SAGHIR AHMAD, JJ.]                             B

        Terrorist & Disruptive Activities (Prevention) Act, 1987-Penal Code
1860;

       Criminal Trial-S.302/34 1PC read with S.3(2) of the Act-Interested       C
Witness-Prosecution relying on evidence of f amity members of the
deceased-No independent witnesses examined-Enmity between accused
and f amity members of the deceased-Such witnesses testifying the presence
of a dead person along with the accused at the place of incident-Conviction
on the testimony of such witnesses whether sustainable-Held, witnesses who      D
are related to the deceased are as competent to depose the facts as any other
witness----Mere relationship does not disqualify a person-The Court should
scrutinise their evidence with care and caution-Under facts and circumstan-
ces, the witnesses, on account of the ~nmity, lied before the Court.

       FIR-Lodging of Delay in-Held, under facts and circumstances, the         E
delay was deliberate and meaningful S.15-Confession-Made to Police Of-
ficer-Admissibility of-Held, S.15 of the Act makes a special provision as to
the admissibility of confession and signals a departure from the nonnal rule
contained in Sections 25 and 26 of the Evidence Act-Confession made to
Police Officer not below the rank of Superintendent of Police would be
admissible in evidence subject to the fulfilment of requirements indicated      F
therein.

       S.15-Confession to Superintendent of Polic&-Admissibility of-Con-
fession repeating story of dead person-Basic facts of prosecution story not
admitted in confession-Held, under facts and circumstances, Confession is       G
not truthful and it is discarded and cannot be acted upon.

      Words & Phrases-'Confession'-Meaning of in the context of the
Evidence Act & TADA Act.

        'Hallucination'-Meaning of                                              H
                                     95
    96                   SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A        Appellant is the accused in an incident which took place at the shop
  of the deceased located in the centre of the village in a busy locality. The
  shop of the deceased was targetted by terrorists and the prosecution
  alleged that appellant and K, who were both armed, were present at the
  spot with other Sikh youths who were also armed and indiscriminate firing
  by them resulted in the death of the deceased and injury to one of his sons.
B After investigation, a charge-sheet was submitted only against the appel-
  lant. The appellant contended before the trial court that he had been
  falsely implicated on account of enmity as civil and criminal cases were
  pending between him and members of the family of the deceased. The
  appellant was convicted by the trial court for offence under Section 302/34
C IPC read with Section 3(2) of the Terrorists & Disruptive Activities
  (Prevention) Act, 1987 besides some other offences. The basis of conviction
  of the appellant was the statement of three eye witnesses, all real brothers
  and sons of the deceased, one of whom was injured in the incident and the
  Confessional Statement of the appellant recorded by the police under
D Section 15 of the TADA Act. Against the order of conviction by the trial
  court, the appellant has appealed to this Court.

          The appellant contended that the prosecution did not produce any
    independent eye witness and attempted to prove its case only through
    interested eye witnesses who were the sons of the deceased, though the
E   incident had taken place at 6.30 p.m. in the market area and independent
    witnesses were available; and that the conviction cannot be sustained on
    the testimony of highly interested eye Witnesses who were on inimical terms
    with the appellant and had earlier tried to implicate him and his father in
    a false criminal case involving the same person, K.
F
          Allowing the appeal, the court

          HELD : 1. The contention that the prosecution had relied only upon
    witnesses who are family members of the deceased and are thus highly
    interested cannot, by itself, be a ground to reject their statements. Wit-
G nesses who are related to the deceased are as competent to depose the facts
  . as any other witness. Mere relationship does not disqualify a witness. If
    the incident had taken place at a time or under such circumstances that
    there was no possibility of any other person being present at the spot,
    except those who were related to the deceased, those persons, namely,
H persons related to the deceased, will be competent to depose the facts seen
                         SAHIB SINGH v. STATE                              97

by them. Even if the possibility of independent witnesses being present is A
not ruled out, the witnesses related to the deceased would still be com-
petent witnesses. All that has to be shown is that the witnesses were stating
the truth. The Court itself, in order to find out whether what they had
stated was true or not would scrutinise their evidence with care and
caution. [1!13-E-H]
                                                                                 B
      Kartik Malhar v. State of Bihm; [1996] 1 SCC 614, referred to.

      2. The choronology of events indicates that the F.I.R. was registered
after the statement of son of deceased who had accompanied him to the
hospital was recorded by the police at the hospital at 10.50 p.m. and further    C
that although another son cif the deceased remained in the village, he did
not go to police station to lodge the report even though he had full oppor-
tunity of going to the police station to lodge the report and there is no
explanation forthcoming as to why this was not done especially when there
was a police outpost in his village itself. This chronology further indicates
that the F .l.R. was lodged after unreasonable "delay" and after due delibera-   D
tion. Considering it in the light of the statement of witnesses, the "delay"
was deliberate and meaningful. [105-F-G]

      3. So far as the main incident is concerned, the two sons of the
deceased who were present at the shop and had seen the whole incident are        E
nat consistent. While both stated that Kand the appellant were present at
the spot and both were armed, one of them did not specifically say that the
appellant or K had fired at his father and the job of firing was attributed
by him to other Sikh youths present at the spot. While the other, on the
contrary, specifically stated that appellant had fired at his father.
                                                                   [108-F-G]     F

       4. Admittedly, there is positive enmity between the appellant and his
family members on the one hand and deceased and his family members on
the other. Since K had already been killed by the police before the date of
incident as per the finding of Punjab & Haryana High Court in proceed-
ings initiated against the appellant's family at the behest of the deceased,     G
there was no occasion that he would be present at the spot when the
incident took place. All the three eye-witnesses, testify to the presence of a
dead person at the spot. All of them, therefore, speak a lie. When they saw
appellant to be present at the spot in the company of K, they again speak
a lie as the appellant could not be in the company of K. It appears that         H
    98                    SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A these witnesses who are real brothers were not aware of the death of K
    and, therefore, they made another attempt to implicate the appellant in
    another false case involving K. Indeed, enmity has always the potential of
    making a man stoop to the lowest level of inhumanity. The three brothers,
    on account of the enmity, were highly interested in securing the conviction
B   of the appellant and in achieving this object, they did· not shudder in lying
    before the Court. [105-E; 109-F-H; 110-E-F]

         4.2. Hallucination, as a disease, is an apparent perception without
  any corresponding external object. It is defined as any of numerous sensa-
  tions, auditory, visual or tactile, experienced without external stimulus and
C caused by mental derangement or intoxication. It may occur with relation
  to any of the special senses, namely, hearing sounds or seeing things that
  do not exist. The appellant was surprisingly, placed in the company of a
  dead person, K. The three brothers seem to be suffering from auditory and
  visual sensory perception without any real external stimuli as they had
  heard gunshots and seen K firing at them even though he was dead on the
D date of incident, having been killed earlier. [100-H; 101-A; 110-D]

          5. Another reason to discard the evidence of the three eye witnesses
    is that the two sons of the deceased, who were present at the shop when the
    Sikh youths came to the place and started firing indiscriminately, did not
E   receive any iujury. They also alleged that while they were running away,
    appellant had caught holtl of them but they got themselves freed and ran
    away. Appellant was armed with a gun. If both had come in close contact
    with him, the appellant would have, in the natural course of conduct, fired
    at them instead of attempting to catch them alive. [110-A-B]

F          6.1. A "Confession" must either be an express ackno~ledgement of
    guilt of the offence charged, certain and complete in itself, or it must admit
    substantially all the facts which constitute the offence. [111-G]

          Pakala Narayana Swami v. The King Emperor, 66 Indian Appeals
G 66=AIR (1939) PC 47; Palvinder Kaur v. State of Punjab, AIR (1952) SC
    354 = [1953) SCR 94; Om Prakash v. State of U.P., AIR (1960) SC 409 (412);
    State of U.P. v. Deoman Upadhyaya, [1961) 1 SCR 14 and Veera Ibrahim v.
    State of Maharashtra, AIR (1976) SC 1167 = [1976) 3 SCR 672, relied on.

          Queen Empress v. Babu Lal, ILR 6 Allahabad 509 (539); Queen
H Empress v. Nana, ILR 14 Bombay 260 (263); Queen Empress v. Mehar Ali
                       . SAHIB SINGH v. STATE                           99
Mullick & Ors., ILR 15, Calcutta 589; Emperor v. Cunna, 22 Bombay Law A
Reporter 1247; Imperatrix v. Pandharinath, ILR 6 Bombay 34;
Muthukumaraswami Pillai & Ors. v. Ki.ng Emperor, ILR 35 Madras 397;
Queen Empress v.Jagrup &Anr., ILR 7 Allahabad 646 and Emperor v. Santya
Bandu, 11 Bombay Law Reporter 633, referred to.

      Digest of the Law of Evidence by Justice Stephen, referred to.         B
      6.2. Section 24 of the Evidence Act provides, though in the negative
form, that "Confession" can be trelted as relevant against the person
making the confession unless it appears to the court that it is rendered
irrelevant on account of any of the factors, namely, threat, inducements,    C
promises etc. mentioned therein. The "Confession" has to be affirmatively
proved to be free and voluntary. Before a conviction can be based on
"Confession", it has to be showu that it was truthful. [111-G-H; 112-B]

      Satbir Singh v. State of Punjab, [1977) 3 SCR 195 = [1977) 2 SCC 263
and Hem Raj v. State of Ajmer, [1954] SCR 1133=AIR (1954) SC 462,            0
referred to.

       7.1. Section 15 of the TADA Act makes a special provision as to the
admissibility of confession and signals a departure from the normal rule
contained in Sections 25 and 26 of the Evidence Act. It provides that a
confession made by an accused to a Police Officer not below the rank of a E
Snperinte1ident of Police would be admissible in evidence and can be
proved against that person subject to the fulfilment of other requirements
indicat~d in that Section. Before recording the confession, the Police Of-
ficer has to explain to the person concerned that he is not bound to make
the confession and that if he makes the confession, it may be used as
evidence against him. The Police Officer has also to satisfy himself, after F
questioning the person concerned, that he is making the confession volun-
tarily. The Officer recording the confession has also to record a certificate
of having observed the requirements of law. Such Confessional Statement,
if challenged, has to be showu, before a conviction can be based upon it, to
have been made voluntarily and that it was truthful. [112-F -H; 113-A-D]      G
      7.2. The TADA Act, like the Evidence Act, does not define "Confes-
sion" and therefore, the principles enunciated with regard to the meaning
of "Confession" under the Evidence Act shall also apply to a "Confession"
made under this Act. Conviction on "Confession" is based on the Maxim
"habemus optimum testem confitentem renum" which means that confession H
       100                  SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A of an accused is the best evidence against him. The rationale behind this
       rule is that an ordinary, normal and same person would not make a state-
       ment which would incriminate him unless urged by the promptings of truth
       and conscience. [113-8-C]

              8.1. The story of Hallucination is repeated in the so-called Confes-
B      sional Statement of the appellant recorded by Superintendent of Police,
       Jind, by saying that a dead person came to the appellant, talked to the
       appellant, asked the appellant to pay ~s. 15,000 so that that "dead person"
       may pay it to other terrorists through whom the job of killing the deceased
       would be performed; the dead person came to the spot along with other
C      terrorists .on the date of incident and committed the murder of deceased.
       The Confessional Statement further makes that dead person to ride on a
       motorcycle and drive away along with other terrorists on the same motor-
       cycle. [114-G; 115-A-B]

             8.2. The Confessional Statement does not admit even substantially
D the basic facts of the prosecution story, in as much as in the Confessional
       Statement, no role is assigned to the appellant while in the prosecution
       stocy an active role has been assigned to him by showing that he too was
       armed with a gun and had gone at the spot and participated in the
       commission of the crime by firing his gun specially at the injured witness.
i:.·   The Confessional Statement is not truthful and is part of the Hallucination
LJ
       with which prosecution and its witnesses were suffering. It is accordingly
       discarded and cannot be acted upon. [115-8-C]

             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
       219 of 1994.
F
            From the judgment and Order dated 8.2.97 of the Designated Court
       in Rohtak at Jind, in S.C. No. 30 of 24.4.1992.

             U.R. Lalit, (Ms. Kamaljeet Kochhar) for J.D. Jain for the Appellant.

G            B.S. Chahar and Prem Malhotra for the Respondent.

             The Judgment of the Court was delivered by

        S. SAGHIR AHMAD, J. HALLUCINATION, as a disease, is an
  apparent perception without any corresponding external object. It is
H defined as any of numerous sensations, auditory, visual or tactile, ex-
            SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.)                   101

perienced without external stimulus and caused by mental derangement or A
intoxication. It may occur with relation to any of the special senses, namely,
hearing sounds or seeing th;_ngs that do not exist.

      2. The prosecution in this case presents before us a story of Hal-
lucination where a dead person is seen by the eye-witnesses to have come
armed with a gun, fired the gun at one of the witnesses who was injured B
and then was seen running away with other people including the appellant,
towards another village never to be found again. The appellant was seen
in the company of that dead person, shoulder to shoulder, armed with a
gun and triggering it to keep pace with the activities of his companion, the
dead.                                                                        C
     3. Prosecution unfolds its story by ushering us into an era when the
Punjab was writhing in pain of militancy.

       4. Village Pipaltha, P.S. Garhi, Distt. Jind, where Om Prakash
(deceased) lived with his three sons, Dharam Pal (P.W.10), Surinder (P.W.       D
11) and Suresh (P.W. 12) (fourth is not material) was targetted by terrorists
resulting in the death of Om Prakash and gunshot injuries to his son,
Suresh.

       5. The appellant was prosecuted and tried by the Additional Judge E
(Designated Court, Rohtak at Jind) and convicted for offences u/s 3"ll2/34
IPC read with Section 3(2) of the Terrorist & Disruptive Activities
(Prevention) Act, 1987 (for short, the 'Act') with a fine of Rs. 200 or else
further rigorous imprisonment for one year; under Section 452/34 IPC
(Sentence : 3 years R.I. with a fine of Rs. 100 or else 3 months further
R.I.); under Section 307/34 IPC (Sentence : 7 years R.I.); and under F
Section 394/34 IPC (Sentence : 10 years R.I. with a fine of Rs. 200 or else
R.I. for one year).

      6. House of Om Prakash which also contained a shop at which
Dharam Pal and Surinder used to sit, was located almost in the centre of G
the village in a busy locality. A .short distance away was another shop at
which Suresh and his brother, the fourth son of Om Prakash, used to sit.

      7. On 18.11.1991 at about 6.30 P.M. while Om Prakash was at the
shop of-his two sons, Dharam Pal and Surinder, two young Sikhs armed
with small guns, came and asked Om Prakash to hand over his revolver but        I-J
    102                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A Om Prakash who did not possess a revolver offered his .12 bore gun. The
    two Sikh youths, at the point of gun, brought all the three, namely, Om
    Prakash, Dharam Pal and Surinder on the street where a group of three



B
    other young Sikhs were standing on the right side of the shop while another
    group of three or four Sikh youths, which also included the appellant, was
    standing in front of their shop. All of them were holding small guns and
                                                                                   c
    were between the age group of 25-30 years. One of the two Sikh youths,
    brought out a Hero-Honda Motor Cycle from the shop and wanted Om
    Prakash to sit on the Motor Cycle but Om Prakash refused and while trying
    to run inside the shop, he was fired upon. He attempted to enter the room
C   on the rear of the shop but all the Sikh youths present there started firing
    indiscriminately as a result of which he received injuries on various parts
    of his body. While Dharam Pal and Surinder managed to escape, Suresh,
    who was at the other shop, came running to help them but was injured in
    the firing. All the Sikh youths then went away towards village 'Rewar'.

D        8. Om Prakash was taken to a hospital at Narwana where he was
    declared dead while Suresh, who was medically examined there, was
    admitted for treatment.

          9. After ·due investigation, a charge-sheet was submitted only against
E   the appellant who was tried and ultimately convicted as aforesaid.

          10. The appellant, from the very beginning, had denied the
    prosecution story and had contended that he had been falsely implicated
    on account of enmity as civil and criminal cases were pending even on the
    date of incident between· him and other members of the family of Om
F   Prakash. He, in that connection, examined one witness in defence and also
    brought on record certain documents including a copy of the order passed
    by the Punjab & Haryana High Court in Criminal Miscellaneous Case No.
    6397(M) of 1992.

G         11. Let us find out the truth.

          12. The statement of three eye witnesses one of whom was an injured
    witness as also the appellant's confessional statement recorded by the
    police under Section 15 of the Act, constitute the basis of his conviction
H   for the offences in question.
            SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.)                103

      13. So far ·as eye witnesses are concerned, they are three, namely, A
Dharam Pal (P.W. 10), Surinder (P.W. 11) and Suresh (P.W. 12). They are
sons of Om Prakash (deceased). Suresh (P.W. 12) is an injured witness.
These witnesses speak of the appellant's presence at the spot with a gun
with one Kala Singh who was also armed with a gun.
                                                                            B
      14. It is contended by the learned counsel for the appellant that
although the incident had taken place at 6.30 P.M. on 18.11.1991 in the
market area, the prosecution did not produce any independent eye witness
and attempted to prove its case only through interested eye witnesses who
were the sons of the deceased. It is contended that in such a situation C
where the independent witnesses, in spite of being available were not
produced, the conviction cannot be sustained merely on the testimony of
hightly interested witnesses particularly in view of the fact that Om Prakash
(deceased) and his family members including his three sons who have been
produced as eye witnesses were on inimical terms with the appellant and D
had even tried earlier to implicate him and his father in a false criminal
case involving, incidentally, the same Kala Singh in whose company the
appellant, in the instant case, has been placed.


       15. The contention that the prosecution had relied only upon E
witnesses who are family members of the deceased and are thus highly
interested cannot, by itself, be a ground to reject their statements.
Witnesses who are related to the deceased are as competent to depose the
facts as any other witness. Mere relationship does not disqualify a witness.
If the incident had taken place at a time or under such circumstances that
there was no possibility of any other person being present at the spot,
                                                                             F
except those who were related to the deceased, those persons, namely,
persons related to the deceased, will be competent to depose the facts seen
by them. Even .if the possibility of independent witnesses being present is
not ruled out, the witnesses related to the deceased would still be
competent witnesses. All that has to be shown is that the witnesses were G
stating the truth. The Court itself, in order to find out whether what they
had stated was true or not would scrutinise their evidence with care and
caution. In Kanik Malhar v. State of Bihar, [1996] 1SCC614= 1996 Cr.L.J.
889 decided by a Bench of this Court of which one of us (Saghir Ahmad,
J.) was a member, it was held :-                                             H
    104                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A               "A close relative who is a natural witness cannot be regarded
            as an interested witness. The term 'interested' postulates that the
            witness must have some direct interest in having the accused
            somehow or the other convicted for some animus or for some other
            reason."                                                                 [
B         16. This contention raised on behalf of the appellant will be
    considered a little later to find out whether the witnesses had the motive
    to secure the conviction of the appeallant and were, therefore, interested
    witnesses.

C          17. Dharam Pal (P.W. 10) has stated that he had taken his father Om
    Prakash and brother Suresh to the hospital at Narwana where they reached
    at about 10.00 P.M. The Police Outpost at Pipaltha had already radioed
    the message to Police Station, Garhi which was received by AS.I. Dharam
    Singh (P.W. 16) at 6.50 P.M. It is not disputed that Police Station, Garhi
D   falls on way to Narwana but there too the matter was not reported. That
    by itself Would not be relevant as Dharam Pal who was taking his father
    and brother to the hospital might have been in a hurry to save their lives.
    What is, however, relevant is that Surinder (P.W. 11), the other son of Om
    Prakash remained in the village and did not accompany his father or the
E   injured brother to the hospital. He had full opportunity of going to the
    police station to lodge the report but there is no explanation forthcoming
    as to why this was not done. Dharam Pal, in his statement on oath, has
    stated that there was a police outpost in his village but there too, no report
    was lodged.

F        18. The police of P.S. Garhi which already knew the incident, having
  been informed by the Police Outpost, Pipaltha, reached at the hospital at
  9.30 P.M. Om Prakash was already declared dead by the doctors at the
  hospital. The statement of Dharam Pal was recorded by the police at the
  hospital at 10.50 P .M. on 18.11.91 after obtaining the opinion of the doctors
G that Suresh (P.W.12) who was injured in the incident in question, was not
  in a fit condition to make the statement. On the basis of the statement of
  Dharam Pal, a formal F.I.R. No. 237 was recorded at Police Station, Garhi
  at 12.15 A.M. on 19.11.91 in which the appellant was named as an accused.
  The Special Report which was sent to the Magistrate at Narwana was
H received by him at 4.00 A.M.
             SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.]                     105

      19. It would be relevant here to reproduce the following passage from        A
the statement of Dharam Pal (P.W. 10) :-

         "My brother Su render remained in the village. I cannot tell whether
         Surender my brother made any report to the police in viii. Pipaltha
         when we had taken our father to Hospital. We did not lodge any            B
         report with the police station Garhi as we were first of all to save
         our father. It is correct that if we come from village Pipaltha to
         Narwana, P.S. Garhi is located on the road on the way to Narwana.
         We reached the Hospital at about 8.10 P.M. The police came at
         about 9.30 P .M. in the Hospital. On our arrival in the Hospital,
         the doctor had declared our father as dead. My statement was              C
         recorded at about 10.15 PM by the police. My statement was
         recorded only at that time and was not recorded subsequently. I
         did not make any supplementary to the police in this case after my
         statement was recorded l:iy the police in Civil Hospital. I stated to
         the police in that very Hospital after about 2/3 hours of my              D
         recording the statement, name of Kala Singh but no statement to
         that effect was recorded by police at that time. I had fully recog-
         nised Kala Singh and he was standing with Sahab Singh near the
         wall of Bharthu. Kala Singh had also fired shots as all the eight
         were firing while running after us. I had not stated name of Kala
         Singh in my statement Ex.PD to the police. I had stated the name          E
         of Kala Singh afterwards."

       20. The chronology of events indicates that the F.I.R. was registered
after the statement of Dharam Pal was recorded by the police at the
hospital and further that although Surinde~ remained in the village, he did        F
not go to the police station to lodge the report. This chronology further
indicates that the F.I.R., in this case, was lodged after unreasonable "delay"
and after due deliberation. Normally, this delay would have been ignored
but if it is considered in the light of the statement of witnesses, which we
shall presently scrutinise, it would come .:rnt that this "delay" was deliberate   G
and meaningful.

      21. Admittedly, there is positive enmity between the appellant and
his family members on the one hand and Om Prakash and his family
members on the other. The follwing extract from the statement of Dharam
Pal would bring out the factum of enmity existing between the parties :-           H
    106                  SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A               "Lakhi and Giani Harijans were employed by us to work in the
            fields alongwith other workers on daily wages whenever we felt any
            necessity. They were not our regular employees. I do not know
            whether Lakhi and Giani got registered a case against Sucha Singh
            and two brothers of Sahab Singh accused at our instance after this
            occurrence. It is correct that a criminal case under Section 325
B           IPC etc. was pending in the Court of JMIC, Narwana against Sahab
            Singh etc. accused and against us, prior to this occurrence. In other
            words, cross-cases against us were pending before this occurrence.
            A civil litigation had also proceeded between us and Sahab Singh
            accused prior to this occurrence. We and Sahab Singh accused
c           were on inimical terms prior to this occurrence due to civil and
            criminal litigation between us."

          22. To the same effect is the statement of Surinder (P.W.11) who
    stated as. under :-

D           "It is correct that civil and criminal litigation between us and Sahab
            Singh accused is still pending in the courts and it was also pending
            at the time of alleged occurrece. Both of us were challaned in case
            under sec. 325 IPC and cross-cases against Sahab Singh and also
            against us was pending at the time of occurrence. I had also told
E           the police about the enmity."

          23. Suresh Kumar (P.W. 12), who is an injured witness, also admitted
    that he and Sahib Singh were on inimical terms.

          24. It is in this background that the statement of these three eye
F witnesses, who are real brothers, are to be analysed to find out whether
    the occurrence did take place in the manner stated by them and whether
    in that incident Sahib Singh and Kala Singh participated and fired at Suresh
    Kumar (P.W. 12) or at Om Prakash deceased).

G        25. Dharam Pal, in his statement, narrated the incident in the follow-
    ing words :-

            "One Sikh youth remained standing inside the shop while the other
            Sikh youth came outside and took our personal search. The Sikh
            youth who took personal search brought our motor-cycle from the
H           shop outside. The motor-cycle was of Hero-Honda make bearing
      SAHIB SINGH v. STATE (S. SAGHIR AHMAD, J.]                  107

  registration No. HR-32/0218. The Sikh youth who took out the           A
  motor-cycle from the shop, made to sit forcibly my father on the
  motor-cycle but my father pushed him back and then my father
  started walking inside the shop. The Sikh youth standing inside the
  shop fired a shot from his fue-arm which hit my father on the left
  side of the chest. The Sikh youths who were standing outside the       B
  shop started firing indiscriminately on my father which hit him on
  the chest, back and on the hand etc. My father fell down inside
  the room next to the shop and we ran away but at that time while
  we were running, Sahab Singh accused tried to catch hold of us
  but we succeeded in getting rid off Sahab Singh and concealed our      C
  presence in the street of the house of Krishna Mehra. Sahab Singh
  etc. all the 8 sikh youths chased us and were firing. On hearing the
  noise of shots, my brother Suresh and Sadhu came towards the
  side of our shop and while he was crossing the street, he (Suresh)
  received gun shot injury."
                                                                         D
26. Surinder (P.W.11) narrated the incident in the following words :-


  "We saw that three sikh youths were standing in front of shop of
  Bharthu and three sikh youths were standing near the wall of Fatia
  Kumhar. They were also armed with small size guns. Sahab Singh E
  accused present in the court today was one of the three sikh youths
  whu were standing in front of the shop of Bharthu. Kala Singh was
  also standing at that time with Sahab Singh. Out of the two sikh
  youths, who took out us, one of them took our personal search and
  one of them remained standing ~efore us aiming the gun towards F
  us. The sikh youth conducted our search took out our Hero Honda
  motor-cycle from the shop and asked my father to sit on the carrier
  of that motor-cycle and he also forcibly tried to make my father
  sit on the carrier of the motor-cycle but my father gave him a push
  and moved towards the shop. One of them fired at my father in
  the left side of the chest. The sikh youth who was standing inside G
  the shop came out and all the sikh youths then fired at my father
  who was in the shop at that time. Rather my father had entered
  the next room in which the shop was opening from behind at that
  time. Sahab Singh and Kala Singh had also fired my father at that
  time and were two of the eight. My father received injuries on the H
    108                  SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A           back, near the right hip-region. He also received injuries on back,
            hands etc. My father fell down in the room as a result of injuries
            sustained. We i.e. I and my brother Dharam Pal, tried to run away
            but Sahab Singh accused tried to catch hold of us but we escaped
            and ran towards the street and concealed ourselves."

B        27. Suresh Kumar (P.W. 12) narrated the incident in the following
    words :-

            "I was resident at Pipaltha along with my brothers and father about
            11/z years ago. We were having two shops at village Pipaltha. At
c           one of the shops, my father, Om Prakash, brother Dharam Pal and
            Surender used to sit while on the other shop my brother Sadhu
            Ram and I used to sit. On 18.11.91, I was present at my shop.
            Sadhu Ram was also present at that time. We heard the noise of
            gun shots. Sadhu Ram, my brother, went via street which runs by
            the side of the ho~ses while I was going to my house through the
D           main street. 8 persons including Sahab Singh accused were coming
            while firing. Kala Singh was also one of them. Sahab Singh fired
            at me which hit my arm. Kala Singh also fired at me and which
            also hit me at my right arm. The accused went towards village
            Rewar."
E
          28. He further stated in the cross-examination as under :-

            "I received two gun shots injuries and two shots were fired at me
            one by Kala Singh and one by Sahab Singh."

F       29. From the above, it would appear that so far as main incident is
  concerned, Dharam Pal and Surinder who were present at the shop and
  had seen the whole of the incident are not consistent. While Dharam Pal
  and Surinder both stated that Kala Singh and the appellant were present
  at the spot and both were armed, Dharam Pal did not specifically say that
G the appellant had fired at Om Prakash nor did he say that Kala Singh had
  fired at his father. The job of firing was attributed to other Sikh youths
  present at the spot. Surinder (P.W.11), on the contrary, specifically stated
  that Sahib Singh had fired at his father.

          30. Suresh Kumar (P.W. 12) speaks of the presence of Kala Singh
H along with the appellant among the group of eight Sikh youths who had
             SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.]                  109

 come to the shop of Dharam Pal and Surinder. He stated in his examina-         A
 tion-in-chief that Sahib Singh had fired at him which had hit his arm. He
 also stated that Kala Singh had also fired at him which had hit his right
 arm. In cross-examination, he repeated that he had received two gunshot
 injuries as two shots were fired at him; one by Kala Singh and the other
 by Sahib Singh.
                                                                                B
       31. Who is this Kala Singh?

       32. Dharam Pal, in his cross-examination, has stated that he knew
. Kala Singh from his childhood as he was the resident of village Pipaltha
  which he had left about 2 or 3 years prior to the occurrence but his family   C
  members still lived in the village.

       33. On account of the enmity between the parties, appellant's father
 Sucha Singh and others were implicated in a case relating to the "harbour-
 ing" of Kala Singh in their house. This case was initiated on the basis of
 the FIR lodged by Lakhi Ram under Section 216-A IPC read with Section          D
 4(3), 3 and 6 of the Act on the ground that Kala Singh was harboured by
 Sucha Singh and olhers in their house. This FIR was challenged by the
 accused, involved in that case, in Criminal Miscellaneous Petition No.
 6397-M of 1992 and Criminal Miscellaneous Petition No. 7728-M of 1992.
 Both the Petitions were allowed by Justice G.S. Chahal of the Punjab&•         E
 Haryana High Court by judgment dated December 1, 1992 with the finding
 that Kala Singh had already been killed by the police on O_ctober 31, 1991,
 prior to the registration of the case and, in any case, the allegations made

                                                    .
 in the FIR did not make out any case of "harbouring" .

       34. Since Kala Singh had already been killed by the police on F
 October 31, 1991, there was no occasion that he would be present at the
 spot on 18.11.91 when the incident, giving rise to this case, took place. All
 the three eye witnesses, examined in this case, testify to the presence of a
 dead person at the spot. All of them, therefore, speak a lie. When they saw
 appellant to be present at the spot in the company of Kala Singh, they again G
 speak a lie as the appellant could not be in the company of Kala Singh. It
 appears that these witnesses who are real brothers were not aware of the
 death of Kala Singh and, therefore, they made another attempt to implicate
 the appellant in another false case involving Kala Singh. The first case, as
 was seen earlier, was initiated by Lakhi Ram who was the labourer of Om
 Prakash (deceased).                                                           H
    110                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A         35. Another reason to discard the evidence of these witnesses is that
    Dharam Pal and Surinder, who were present at the shop when the Sikh
    youths came to the place and started frring indiscriminately, did not receive
    any injury. They also alleged that while they were running away, Sahib
    Singh had caught hold of them but they got themselves freed and ran away.
    Sahib Singh was armed with a gun. If both Dharam Pal and Surinder had
B   come in close contact with him, he would have, in the natural course of
    conduct, fired at them instead of attempting to catch them alive.

        36. The evidence on record indicates that the incident had not taken
  place in the manner alleged by the prosecution in which a dead person is
C shown to have participated in the incident in question. Not only that he
  was shown to be armed with a gun, he was also shown to have fired at
  Suresh. The appellant was surprisingly, placed in the company of that dead
  person. Is this not Hallucination? The three brothers seem to be suffering
  from auditory and visual sensory perception without any real external
  stimuli as they had heard gunshots and seen Kala Singh firing at them even
D though he was dead on the date of incident, having been killed on
  31.10.1991.

          37. Indeed, enmity has always the potential of making a man stoop
    to the lowest level of inhumanity. This is what has happened in the instant
    case where certain terrorists appear to have come and attacked the shop
E   of Dharam Pal where his father was sitting who was shot dead and the
    Hero Honda Motor Cycle was taken away. Not having seen as to what had
    happened and who had killed their father, the three brothers, thought of
    involving the appellant in this case so that he may be removed from the
    scene and lodged in the jail as they, on account of the enmity, were highly
    interested in securing his conviction and in achieving this object, they did
F   not shudder in lying before the Court, ignoring, in the process, what
    WILLIAM HAZLITT had said that "Lying is the strongest acknow-
    Iedgement of the force of truth."

          38. The Confessional Statement of the appellant with which we
G intend to deal now is the other basis for his conviction. Before looking into
    the contents of the Confessional Statement, we may first consider the
    relevant provisions of the Evidence Act around which certain principles
    have been built by judicial pronouncements including those of this Court.

          39. Evidence Act contains a separate part dealing with "Admission".
H This part comprises of Sections 17 to 31. "Confession" which is known as
            SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.)                    111

a species of "Admission" is to be found contained in Sections 24 to 30.         A
       40. "Confession" has not been defined in the Evidence Act. Mr.
Justice Stephen in his Digest of the Law of Evidence, defined it thus :

        "A confession is an admission made at any time by a person
        charged with crime, stating or suggesting the inference that he         B
        committed the crime."

This definition was adopted by various High Courts here. (See : Queen
Empress v. Babu Lal, ILR 6 Allahabad 509 (539); Queen Empress v. Nana,
ILR 14 Bombay 260 (263); Queen Empress v. Meher Ali Mullick & Ors., C
ILR 15 Calcutta 589; Emperor v. Cunna, 22 Bombay Law Reporter 1247;
lmperatrix v. Pandharinath, ILR 6 Bombay 34; Muthukumaraswami Pillai &
Ors. v. King Emperor, ILR 35 Madras 397. Straight, J., however, in Queen
Empress v. Jagrup & Anr. ILR 7 Allahabad 646, did not adopt this definition
and held that only those statements which are direct acknowledgements of
guilt could be regarded as "confessions" and no.t mere inculpatory admis- D
sion which may fall short of an admission of guilt. Similar view was taken
in Emperor v. Santya Bandu, 11 Bombay Law Reporter 633. The judicial
opinion was thus not unanimous as to the exact meaning of "Confession."
The Privy Council, however, by its authoritative pronouncement in Pakala
Narayana Swami v. The King Emperor, 66 Indian Appeals 66 =AIR (1939) E
PC 47, clarified the position and laid down that "a confession must either
admit in terms the offence, or at any rate substantially all the facts which
constitute the offence." This was followed by this Court in many cases,
including Palvinder Kaur v. State of Punjab, AIR (1952) SC 354 = [1953)
SCR 94; Om Prakash v. State of U.P., AIR (1960) SC 409 (412); State of
U.P. v. Deoman Upadhyaya, [1961) 1 SCR 14 and Veera Ibrahim v. State of F
Maharashtra, AIR (1976) SC 1167 = [1976) 3 SCR 672.

      41. In view of these decisions, it is now certain that a "Confession"
must either be an express acknowledgement of guilt of the offence charged,
certain and complete in itself, or it must admit substantially all the facts    G
which constitute the offence.

      42. Section 24 provides, though in the negative form, that "Confes-
sion" can be treated as relevant against the person making the confession
unless it appears to the Court that it is rendered irrelevant on account of
any of the factors, namely, threat, inducements, promises etc.. mentioned H
    112                  SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.
A therein. Whether the "Confession" attracts the frown of Section 24 has to
  be considered from the point of view of the confessing accused as to how
  the inducement, threat or promise from a person in authority would
  operate in his mind. (See : Satbir Singh v. State of Punjab, [i977] 3 SCR
  195 = [1977] 2 SCC 263. The "Confession" has to be affirmatively proved to
  be free and voluntary. (See : Hem Raj v. State of Ajmer, [1954] SCR
B 1133=AIR (1954) SC 462. Before a conviction can be based on "Confes-
  sion", it has to be shown that it was truthful.

         43. Section 25 which provides that a "Confession" made to a Police
  Officer shall not be proved against the person accused of an offence, places
C complete ban on the making of such confession by that person whether he
  is in custody or not. Section 26 lays down that confession made by a person
  while he is in the custody of a Police Officer shall not be proved against
  him unless it is made in the immediate presence of a Magistrate. Section
  27 provides that when any fact is discovered in consequence of information
D received from a person accused of any offence who is in the custody of a
  Police Officer, so much of such information, whether it amount to a
  confession or not, as relates to the fact thereby discovered, may be proved.
  Section 27 is thus in the form of a proviso to Sections 24, 25 and 26.
  Sections 164, 281 and 463 of the Code of Criminal Procedure are the other
  provisions dealing with "Confession" and the manner in which it is to be
E recorded.

          44. Section 15 of the TADA Act, however, makes a special provision
    as to the admissibility of confession and signals a departure from the
    normal rule contained in Sections 25 and 26 of the Evidence Act. It
p   provides that a confession made by an accused to a Police Officer of a
    particular rank or higher would be admissible in evidence and can be
    proved against that person subject to the fulfilment of other requirements
    indicated in that Section.

          45. According to these requirements, confession has to be made
G before a Police Officer not below the rank of a Superintendent of Police.
  Before recording the confession, the Police Officer has to explain to the
  person concerned that he is not bound to make the confession and that if
  he makes the confession, it may be used as evidence against him. The
  Police Officer has also to satisfy himself, after questioning the person
H concerned, that he is making the confession voluntarily. The Officer
             SAHIB SINGH v. STATE [S. SAGHIR AHMAD, J.)                    113

 recording the confession has also to record a certificate of having observed A
 the requirements of Jaw.

        46. The Act, like the Evidence Act, does not define "Confession" and,
  therefore, the principles enunciated by this Court with regard to the
  meaning of "Confession" under the Evidence Act shall also apply to a
  "Confession" made under this Act. Under this Act also, "Confession" has B
· either to be an express acknowledgement of guilt of the offence charged
  or it must admit substantially all the facts which constitute the offence.
 Conviction on "Confession" is based on the Maxim "habemus optimum
 testem canfitentem renum" which means that confession of an accused is the
 best evidence against him. The rationale behind this rule is that an ordinary,   C
 normal and sane person would not make a statement which would in-
 criminate him unless urged by the promptings of truth and conscience.

       47. Under this Act, although a confession recorded by a Police
 Officer, not below the rank of Superintendent of Police, is admissible in
 evidence, such Confessional Statement, if challenged, has to be shown, D
 before a conviction can be based upon it, to have been made voluntarily
 and that it was truthful.

       48. In the instant case, Confession of the appellant was recorded by
 Superintendent of Police, Jind, on 14.12.1991, which was accompanied by E
 a certifictc by the S.P. Jind, in compliance of the requirement of Section
 15 of the Act. The Confessional Statement has been proved and has been
 marked as Exh. PW-14/A. The relevant portion of the Confessional State-
 ment is as under :

         "My father Sucha Singh and Om Parkash Mahajan, R/o Pipaltha              F
         purchased some agricultural land in village Pipaltha since long.
         After that there was dispute between them. Om Parkash was a rich
         man. Om Parkash got implicated my father in false cases and got
         challaned through police on the basis of which grudge increased.

         There is one Kala Singh@ Rukha in our village who has committed G
         two murders in our village and he is intenglled in the group of
         terrorists and is residing in Punjab. Kala Singh was on visiting terms
         with us 3-4 days. Before committing the murder of Om Parkash,
         Kala Singh @ Rukha had come to us. I had asked Kala Singh @
         Rukha to commit the murder of Om Parkash Mahajan R/o Pipal- H
    114                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A           tha. Kala Singh @ Rukha told me that he has no need of money
            but he had to pay Rs. 15,000 to the other terrorist for committing
            the murder. I promised to pay Rs. 15,000 and Kala Singh had ask~d
            me to hand over Rs. 15,000 to him in Mukord Gurudwara. On
            18.11.1991 Kala Singh @ Rukha R/o Pipaltha accompanied by six
            terrorists, one of them was Nachhatar Singh, names of other not
B
            known, came to my house. Kala Singh @ Rukha had asked me to
            see as to whether Om Parkash Mahajan is present at the house or
            not. On this asking I went to the house of Om Parkash. Olil l_'arkash
            was present at his shop. I told Kala Singh @ Rukha that Om
            Parkash is present at a shop. Kala Singh @ Rukha alongwith his
c           companion terrorist committed the murder of Om Parkash
            Mahajan by shots going at his house. Firing in the street they ran
            away on the Hero Honda Motor Cycle No. HR-32·0218 after
            taking the same from the shop of Motor cycle, I went to my home
            after making information of Om Parkash Mahajan to Kala Singh
            @ Rukha and started drinks. On hearing the noise of fires I ran
D
            away from my house due to fear. That the sons of Om Parkash
            may not named me for the murder of Om Parkash, I had promised
            to pay Rs. 15,000 for the murder of Om Parkash Mahajan."

          49. A perusal of the Confessional statement would indicate that three
E   or four days prior to the date of incident, which incidentally is 18.11.1991,
    Kala Singh had come to the apellant and the appellant had requested Kala
    Singh to commit the murder of Om Prakash, for which Kala Singh wanted
    Rs. 15,000 to be paid to other terrorists who would be hired for that job.
    It was on the basis of this arrangement that Kala Singh came along with
F   six other terrorists, including Nachhatar Singh, on 18.11.1991 and com-
    mitted the murder of Om Prakash. The terrorists, including Kala Singh,
    went away on the Hero Honda Motor Cycle.

        50. It has been held above that Kala Singh had already been killed
  in a police encounter on 31.10.91. There was, therefore, no occasion of his
G coming to the appellant and the appellant asking Kala Singh to commit the
  murder of Om Prakash on Rs. 15,000 being paid to him.

          51. The story of Hallucination is repeated in the so-called Confes-
    sional Statement by saying that a Dead person came to the appellant,
H   talked to the appellant, asked the appellant to pay Rs. 15,000 so that that
             SAHIBSINGHv. STATE [S.SAGHIRAHMAD,J.]                            115

"dead person" may pay it to other terrorists through whom the job of killing A
Om Prakash would be performed; the dead person came to the spot along
with other terrorists on 18.11.91 and committed the murder of Om Prakash.
The Confessional Statement further makes that dead person to ride on a
motorcycle and drive away along with other terrorists on the same motor-
cycle. The dead also drives!
                                                                                     B
      52. The Confessional Statement does not admit even substantially the
basic facts of the prosecution story, inasmuch as in the Confessional
Statement, no role is assigned to the appellant while in the prosecution
story an active role has been assigned to him by showing that he too was
armed with a gun and had gone at the spot and participated in the                    C
commission of the crime by firing his gun specially at the injured witness.
The Confessional Statement is not truthful and is part of the Hallucination
with which prosecution and its witnesses were suffering. It is accordingly
discarded and cannot be acted upon.

        53. A little effort on the part of the trial court would have revealed D
to it the falsity of the prosecution case, but it proceeded in a mechanical
manner and ultimately convicted the appellant ignoring that there was a
deliberately delayed FIR and the case set out therein was sought to be
proved through highly interested witnesses, instead of independant wit-
nesses, and also by bringing on record a Confessional Statement which E
contained false facts. This leads to the conclusion that the trial judge was
sitting only to convict forgetting that judiciary holds the SCALES even, not
tilted.

      54. For the reasons stated above, the appeal is allowed, the judgment
dated 8.2.1994 passed by the trial court is set aside and the appellant is           F
acquitted of all the charges. He is in jail. He shall be set at liberty forthwith,
unless required in some other case.

A.K.T.                                                          Appeal allowed.