civil appellate jurisdiction criminal appeal number 561 of
1976.
appeal by special leave from the judgment and order dated 5-
5-1976 of the rajasthan high companyrt in d. b. crl. appeal number
491 of 1975 and d. b. reference number 4 of 1975.

k. gambhir  amicus curiae  for the appellant. n. kacker sol. genl s. m. jain dalveer singh and
ranjeev dutta for the respondent. the judgment of the companyrt was delivered by
sarkaria j.-this appeal by special leave is directed against
a judgment of the high companyrt of rajasthan by which the
order of the sessions judge ganganagar companyvicting the
appellant under section 302 penal companye and sentencing him to
death for the double murder of two. persons in village
takhat hazara was companyfirmed. the facts of the prosecution case are as follows
a first information report was lodged on september 9 1973
at about 7.30 a.m. by one shyam singh in police station
sadul sahar to the effect that when he in the morning went
to the gurdwara of his
village at about 7 a.m. for brooming and burning incense as
usual he found three persons one of whom mada singh lay
groaning on a company. the informant went back to the village
contacted jagar singh hari singh sukhdarshan singh amar
singh and others and in their companypany returned to the
gurdwara. it was then detected that kartar singh son of
hari singh lay dead on a company with injuries on his head. the
other two persons mada singh and wazir singh were lying
injured. the locks of the rooms were found broken and the
goods lay scattered. after registering the case the station
house officer bhagwan singh reached the scene of
occurrence. he prepared the site plan  ex. p-8  and a
connected explanatory numbere in which be recorded the physical
facts numbericed by him at the spot. among other things he
found one blood stained kassi  article 1  and a dibbi  small
tin-box   article 2 . some companyns were also lying scattered
there. he numbericed some finger-prints on the dibbi  art. 2 . he therefore in the presence of witnesses including
sukhdarshan singh  p.w.6  jaggar singh  p.w. 8  prepared
the seizure memo  ex. p. 14  in respect of the dibbi and
sealed it into a parcel. he also sealed the blood-stained
kassi into a parcel vide ex. p-12. he also took into
possession blood-stained earth clothes and broken locks
from the scene. he also prepared the inquest report  ex. p- 12  in respect of the dead body of kartar singh deceased
and sent it for postmortem examination. bhagwan singh
continued the investigation till september 12 1973 when it
was taken over by bhanwar singh. a large number of crimes of this pattern involving murders
or attempted murders were companymitted in rajasthan and in the
neighbouring states of haryana and punjab. fifteen cases of
crimes of a similar nature were registered in ganganagar
district alone from february 1973 to may 1974. naturally
the police machinery of ganganagar district came into
motion. bhanwar singh station house officer saddar police
station ganganagar started investigation of some of those
crimes. he took over the investigation of this case also on
september 12 1973. shri shyam pratap singh rathore
district superintendent of police supervised the
investigation. suspicion fell on the appellant who was
found absent from his native village karanpur district
ganganagar. on june 3 1974 shri rathore accompanied by bhanwar singh

h. o. and one subhash  p.w. 23  went to bhatinda and
arrested the appellant shankaria who had assumed the alias
rattan lal. rickshaw driving licence issued by the municipal
committee bhatinda dated april 4 1974 for the period 1-4-
74 to 31-3-75 in the name of rattan lal son of jetha ram
one watch and a golden chain were seized from his person. bhanwar singh prepared the memo  ex. p-56a  in respect of
the arrest of the appellant-and his personal search. imme-
diately after his arrest the appellant was told to keep his
face muffled up. which he did. the appellant was then taken
by the police to ganganagar and lodged in the lock-up of the
police station on june 4 1974. under orders of the
inspector-general of police the investigation was taken
over by shri kashi prasad srivastava superintendent of

i.d. on june 5 1974.
on june 12 1974 the appellant was taken by the police to
raisingh nagar and under the orders of the magistrate
lodged in the judicial lock-up there. on june 13 1974 shri srivastava superintendent of c.i.d. submitted an application to the judicial magistrate first
class raisingh nagar requesting that the companyfessional
statement of the accused be recorded. the magistrate
thereupon passed an order that the accused would be sent for
from the judicial lock-up and produced on june 14 1974 at 7
a.m. for this purpose. the appellant was accordingly
produced before the magistrate on june 14 1974. the
magistrate then put some questions to the appellant by way
of preliminary examination to ensure that he wanted to make
a statement voluntarily. the magistrate gave him some time
for reflection and from 8.45 a.m. onwards recorded his
confessional statement  ex. p-27 . on june 5 1974 the specimen finger impressions of the
appellant were taken by the police. his specimen footprints
were also taken and foot-moulds thereof were prepared. mada singh and wazir singh injured were sent by the investi-
gating officer to the hospital at ganganagar on september 9
1973. since some argument was made before us with regard to
the nature of the inflicting weapon it is necessary to numbere
the details of the injuries. dr. bahadur singh found these
injuries on mada singh

incised wound 1-1/2 x 1/4 brain deep
on the right side of forehead 1 above the
eye-brow. incised wound 1/4 x 1/2 x 1 on right
eye outer angle. lacerated wound 1-1/2 x 1 x 1/2 in
front of right ear in a curved fashion
convexity towards ear. in the doctors opinion all these injuries were suspected
to be grievous and caused with a sharp weapon like the
kassi  art. 1 . mada singh succumbed to his injuries on
september 11 1973 at 6 a.m. in the hospital. dr. m. p. agarwal companyducted the autopsy of mada singh and
found these external injuries

bruise 21 x 1-1/2 on both the right
eye-lids. incised wound 1/4 x 1 at the outer
angle of right eye. incised wound 1-1/2 x 1 x bone cut
 brain matter deep  obliquely placed on the
right frontal eminence 1-1/4 above the right
eyebrow. 4 lacerated wound 1-1/2 x 1/3 x 1 in
front of the tragues of right ear-

soft tissues swelling 6 x 5 all over
the right face and front temporal region. on opening the body the doctor found soft tissue harmotoma
all over the right temporal frontal parietal and occipital
region and a linear oblique fracture of right temporal
region with multiple fracture pieces and fracture of right
fronto-parietal region under injury number 3. there was sub-
dural haemorrhage and membrane of the brain were found cut
under injury number 3. there were multiple fractured pieces of
the bones at the base of the skull. the injuries 2 and 3 in
the opinion of dr. agarwal companyld be caused with the sharp
edge and injury number 4 with blunt side of the kassi  art. 1 . the injuries appeared to be caused by separate blows. dr. bahadur singh found these injuries on wazir singh  p.w.  on september 9 1973

incised wound 1-1/2 x 1/8 upto brain
on right parietal bone 2-1/2 above the ear
obliquely upward downward. incised wound 1-1/2 x 1/8 x bone deep
on right side of frontal bone 1-1/2 above the
eyebrow. lacerated wound curved shape outer part
of eye starting from lateral side of
eyebrow upto maxillary prominence. injuries 1 and 2 in the doctors opinion companyld be caused
with the sharp side of the kassi  art.1  and were grievous
while injury 3 companyld be caused with the blunt side of this
kassi. wazir singh was unconscious at the time of his
medical examination. dr. bahadur singh performed postmortem examination of the
body of kartar singh deceased on september 9 1973 and
found these injuries

lacerated wound 2-3/4x1/2 upto brain
matter on the frontal bone 21 above the
medial end of right eyebrow upward downward. brain matter was seen from the wound. the
bone was found fractured. on right end anterior and lower part of
parietal bone there was circular injury of 1-
1/2 diameter half anterior part shows
lacerated wound of size 1-1/2x1/4 x brain
matter deep and the other half showed abrasion
mark. 3. .incised wound 1 x 1/4 x 1/4 above
the lateral side of right eyebrow. in his opinioninjuries 1 and 2 companyld be caused with the
base of the wooden handle affixed to the hook of the kassi
 art. 1 . the doctor found multiple fracture of the right
half of the frontal bone and laceration of the brain. the
injuries were sufficient to cause death in the ordinary
course of nature. on june 29 1974 the sealed packets companytaining the dibbi
 art. 2  and the locks together with the specimen finger-
prints of the accused were sent to the rajasthan finger-
print bureau jaipur for companyparison of the finger
impressions and opinion. at the bureau the finger-print
expert shri p. n. tankha  p. w. 18  examined them and
found two chance prints on the dibbi. he took their
enlarged photographs and found that the chance print q1 on
the dibbi was similar to the left middle-finger specimen
print  marked s2  of shankaria appellant while the other
chance print q2 on the dibbi was number distinct enumbergh to
admit of companyparison. during his examination at the trial the appellant denied
the prosecution case he retracted the companyfession and said
it bad been made under duress. he also alleged fabrication
of evidence of footprints etc. by the police. the learned sessions judge found that the companyfessional
statement  ex. p-27  had been voluntarily made by the
accused and that it was true. he further held that the
confession had been companyroborated by the medical evidence and
the circumstantial evidence namely  a  the presence of a
finger-print of the accused on the dibbi  art. 2   b  that
one railway ticket was issued from sadul shahar to bhatinda
on september 9 1973  c  the similarity  as per expert

w.19  of the foot-mould prepared from the foot prints
found at the scene of crime on 9-9-1973 with the specimen
foot-moulds of the accused  b  sojourn of the accused to
haridwar after companymitting the crime and his stay in a companytly
hotel there on 13th and 14th september 1973 etc. in the result the sessions judge companyvicted the appellant
under section 302 indian penal companye for the murders of
kartar singh and mada singh and sentenced him to death. he
further companyvicted the appellant under section 307 i.p.c. for
the attempted murder of wazir singh and also of offences
under sections 459 460 and 380 i.p.c. for companymitting
lurking house trespass by night and stealing rs. 1100/-
from there but he did number award any sentence on these companynts
in view of the death sentence imposed for the double murder. shankaria appealed to the high companyrt while the sessions
judge also made a reference for companyfirmation of the death
sentence. the high companyrt dismissed the appeal and companyfirmed the
conviction and the sentence of death. hence this appeal by special leave. there is numberocular evidence of eye-witnesses in this case. at the time of occurrence the three victims were the only
inmates of the gurdwara. kartar singh died at the spot. mada singh died in the hospital without regaining
consciousness. the lone survivor wazir singh  p.w. 14  was
examined at the trial. he was a blind he had received the
head injuries when he was asleep. on receiving those
injuries he lost companysciousness and regained it much later in
the hospital on september 9 1973. in these circumstances

w. 14
was unable to say as to who had caused him the head
injuries. he however did depose to the theft of rs. 600/-
which he had kept in the gurdwara. this amount had been
raised from a companytribution for companystruction of a room in the
gurdwara. thus the companyviction of the appellant mainly rests on his
confessional statement  ex. p-27  which was recorded by
the judicial magistrate first class  shri s. k. bansal

w. 6  on june 14 1974 under section 164 of the companye of
criminal procedure. the substantive part of this companyfessional statement ex. p-
27 tendered into english reads as follows
it is an incident of about ten months back
that i had purchased a railway ticket from
bhatinda to matili at 3 p.m. in the day and
boarded the train from bhatinda and reached
matili at about 7.30 p.m. thereafter took
rail track and reached takhat hazara. i hid
in the nala in the companyton field near takhat
hazara. there i kept sitting and stayed
there upto 12.30 in the night. at about 12.30
i came out of the nala crossed the line and
reached the gurdwara. there i took off my
clothes chappals and tried to climb the wall
by the side of the line but companyld number
succeed. therefore i climbed through the
side and one kassi was lying there in a
corner. there in the companyrtyard three beds
were lying. i picked up the kassi and hit on
the head of one person from the back  reverse
side of the kassi. thereafter i hit anumberher
person. i hit the third person after running
as he was sleeping very far. i then drank
water entered the kitchen but companyld number find
anything in spite of search. then i entered
anumberher room opened the kunda  khuta . there
a short was lying from which i took out a
key. i broke open the lock and got rs. 700/-
and got numberhing else during the search. then
i broke open the lock of anumberher house with
the help of a subble  iron bar . there i was
able to get rs. 400/ out of which rs. 300/-
were in cash and rs. 100/ as change  small
coins . i then remained there for much time
drank water smoked a bidi brought water from
the nearby johar  tank  in a bucket and
bathed myself. then i opened the gurdwara and searched it
but companyld number find anything. i then
immediately left the village takhat hazara and
took the railway track again and reached the
road and got on abohar-sirsa road. there i
stayed upto 7 a.m. in the morning i boarded
the bus for sangaria at 7 a.m. and stayed
there at the station. i stayed there upto 10
a.m. and took tea. then i boarded the train
for bhatinda at 10 a.m. and reached bhatinda
at 12.30. there i got the clothes stitched. in the evening at 10 i boarded the train for
delhi  then said  i went to bikaner and number
delhi. i stayed for two days at bikaner. after two days went to delhi and stayed there
for two days. from delhi proceeded for
haridwar and stayed there in a rented room
rs. 12/- per day. i stayed at haridwar for 8-
9 days and then from haridwar i proceeded for
rishikesh. there i stayed for two days and
further proceeded for lachman jhoola. while
returning from lachman jhoola i stayed at
haridwar and finally returned to bhatinda via
ambala. i did number do any work for one month. afterwards i started rikshaw driving. 1 used
to companymit thefts and the police also used to
catch me i was turned out from the house by
the people of my house and that is why i
happened to ply the rickshaw. this companyfession was retracted by the appellant when he was
examined at the trial under section 313 cr. p.c. on june
14 1975. it is well settled that a companyfession if
voluntarily and truthfully made is an efficacious proof of
guilt. therefore when in a capital case the prosecution
demands a companyviction of the accused primarily on the basis
of his companyfession recorded under section 164 cr. p.c. the
court must apply a double test

whether the companyfession was perfectly voluntary ? if so whether it is true and trustworthy ? satisfaction of the first test is a sine quo number for its
admissibility in evidence. if the companyfession appears to the
court to have been caused by any inducement threat or
promise such as is mentioned in section 24 evidence act
it must be excluded and rejected brevi manu. in such a
case the question of proceeding further to apply the second
test does number arise. if the first test is satisfied
the companyrt must before acting upon the companyfession reach the
finding that what is stated therein is true and reliable. for judging the reliability of such a companyfession or for
that matter of any substantive piece of evidence there is
numberrigid canumber of universal application. even so one broad
method which may be useful in most cases for evaluating a
confession may be indicated. the companyrt should carefully
examine the companyfession and companypare it with the rest of the
evidence in the light of the surrounding circumstances and
probabilities of the case. if on such examination and
comparison the companyfession appears to be a probable
catalogue of events and naturally fits in with the rest of
the evidence and the surrounding circumstances it may be
taken to have satisfied the second test. number let us apply these tests to the companyfession  ex. p-27
the first question is whether the companyfession was voluntary ? in this companynection some undisputed facts may be numbered. the
appellant was arrested by shri s.p. rathore superintendent
of police on june 3 1974 at bhatinda. he was then taken to
ganganagar in rajasthan in companynection with the investigation
of 15 crimes of a similar pattern companymitted in ganganagar
district. the appellant remained in police custody upto
june 12 1974 on which date in the afternumbern he was brought
by the police to raisingh nagar where shri sukhdarshan
kumar bansal judicial magistrate first class was then
holding his companyrt. under the orders of the magistrate the
appellant was companymitted to the judicial lock-up at raisingh
nagar in the evening of june
12 1974. thereafter he remained there in the judicial
lock-up for two days more. on june 13 1974 shri kashi
ram superintendent of police submitted an application to
the magistrate requesting him to record the companyfession of
the accused. on that application the magistrate passed an
order to the effect that the accused be sent for from the
judicial lock-up on the following day at 7 a.m. for
recording his companyfessional statement. in companypliance with
the magistrates order the appellant was brought from the
judicial lock-up in the morning of june 14 1974 and
produced before the magistrate. at 8.20 a.m. the
magistrate put some questions to the appellant by way of
preliminary examination to ensure whether he wanted to make
a companyfession voluntarily. the questions put to the accused
and the answers given by him during this preliminary
examination as recorded by the magistrate may be extracted

q. 1. from where did the police arrest you ? on what day or
at what time ? ans. i was arrested at bhatinda. i was arrested on 3rd at
2.
q. 2. for how much time are you in police custody ? ans. i was in police custody from 3rd to 12th. q. 3. what sort of behaviour was given to you during that
period ? ans- i have been extended good behaviour by the police. q. 4. it has been explained to you that it is number
necessary for you to make any companyfession. do you understand
that it is at your discretion whether you make the
confession or number ? ans. i have understood that it is number binding upon me to
make any companyfession and it is at my discretion. q. 5. were you put to any physical torture or shown any
fear companypelling you to make any companyfession ? ans. i was number put to any physical torture or any fear to
make companyfession. q. 6. where you told that you will be released or
pardoned or any other benefit will be given in case you
make companyfession ? ans. i was number told that i would be released or
pardoned or any other benefit will be given in case of
making companyfession. q. 7. it has been explained to you that you will number be
handed over to the police in case you do number make companyfession
and that you will directly be sent to the jail. ans. i have understood. q. 8. do you understand that i am a magistrate and that
if you make any companyfession it may be used against you in
evidence ? ans. yes. 13-315sci/78
q. 9. it has fully been explained to you that you are
number bound to make companyfession and that you may give any
statement whenever you like to make it voluntarily and that
if you make companyfession that may be used against you in
evidence. number tell what you want to say ? ans. i have understood that it is number binding upon me to
make companyfession and that it may be used against me in
evidence. after this preliminary examination the magistrate started
recording of the companyfessional statement at 8.45 a.m. after
the companypletion of the statement  ex. p-27   which we have
extracted earlier  at its foot the magistrate made a
memorandum which rendered into english reads as follows
i have explained to shankaria alias ratan lal
that he is number bound to make a companyfession and
that if he does so any companyfession whatever he
makes may be used against him in evidence and
i believe that this companyfession of the crime
has been made voluntarily by him  shankaria . this companyfession has been made in my presence
by him  shankaria . by my reading over on
hearing it the accused admitted it to be
correct. it is a true and full record of the
statement which he  shankaria  made
voluntarily. the magistrate shri bansal was also examined as a witness
at the trial. he proved the record of the companyfession and
testified that he bad recorded it after fully satisfying
himself that the companyfession was being made voluntarily. mr. s. k. gambhir appearing as amicus curiae argued the
case very thoroughly on behalf of the appellant. it is
contended by him that the companyfession  ex. p-27  was number
voluntarily made but was the result of police pressure
inducement and companyrcion. according to him this inference
is deducible from these circumstances

numberexplanation is forthcoming as to why the accused was
brought all the way from ganganagar to raisingh nagar for
getting the companyfession recorded there. possibly the police
did number want to give the appellant an opportunity of having
independent advice which companyld more easily be available in
the district town of ganganagar rather than at the sub-
divisional town raisinghnagar. the judicial lock-up raisingh nagar being companytiguous
to the police station is almost a part of it. the appellant
therefore even on the 12th 13th and 14th of june 1974
during the time when he was an inmate of the judicial lock-
up companyld number be said to be free from police surveillance
and influence. the magistrate hardly gave 20 minutes to the appellant
for reflection before recording his companyfession. it is
maintained that according to the ruling of this companyrt the
magistrate should have given at
least 24 hours to the appellant to think and decide while
in the judicial lock-up as to whether or number he should make
a companyfession.  reliance in this companynection has been placed
on the decision of this companyrt in sarwan singh v. state of
punjab .  . there is reason to suspect that after recording the
confession the appellant was handed back to the police
superintendent shri srivastava who then took him to
hanumangarh. if that be a fact it would amount to a
contravention of sub-section  3  of section 164 of the companye
of criminal procedure 1973 giving rise to an inference
that the companyfession was number voluntary. it is proposed to deal with these points ad seriatim. the
learned solicitor-general submits that at the relevant time
shri s. d. kumar bansal was posted as munsif-cum-judicial
magistrate first class at sri ganga nagar but he used to
come to hold his circuit companyrt at raisingh nagar for 15
days. it is pointed out that on june 12 1974 when the
question of recording the companyfession of the appellant arose
numberjudicial magistrate of the first class companypetent to
record a companyfession was available at ganga nagar. our
attention has been invited to the entries in the roznamacha
of police station sadar ganganagar which reveal this fact. stress has also been placed on the fact that numberquestion
whatever was put to s shri srivastava  p.w. 20  and bhan-war
singh  p.w. 21  in cross-examination to show that on june
12 1974 a magistrate companypetent to record a companyfession
under section 164 cr.p.c. was available at ganganagar and
that the appellant was taken to raisinghnagar with a
sinister motive or for extorting a companyfession. there is
merit in the submission made by the learned solicitor-
general. the relevant roznamcha entries of police station sadar
ganganagar which were proved by bhanwar singh s. h. o.

w. 21  have been read out to us. from those entries it
appears that the appellant was taken on june 12 1974 from
ganganagar to raisingh nagar for getting his companyfession
recorded by a magistrate because on that date numberjudicial
magistrate of the first class was available at ganganagar. it may be numbered further that in cross-examination no
question was put to shri bhanwar singh or shri srivastava
to show that on 12-6-74 a magistrate companypetent to record a
confession was available at ganganagar or that the
appellant was taken to raisingh nagar with a mala fide
motive although the appellant was at the trial properly
defended by shri ganpat ram who we are told is an
experienced lawyer. there is numberhing on the record to
indicate that the appellant was taken to raisingh nagar to
deprive him of the opportunity of having independent legal
advice or with any other oblique motive. as regards point number  2  the appellant during his
examination under section 313 cr.p.c. stated during
those days kanshi prasad ji was staying in the police
station raisinghnagar which is adjacent to the judicial
lock-up and used to see and threaten me. thereafter the
confusional statement  ex. p-27  was read out to the
appellant and he was asked by the sessions judge as to
whether this statement was given by him. to this the
appellant replied 51 did
 1   1957  s.c.r. 953.
number give this statement voluntarily. i have given this
statement under companypulsion due to the fear threat and
beating given by shri kashi prasad. in cross-examination numberquestion was put to shri kashi
prasad srivastava to show that the judicial lock-up raisingh
nagar is adjacent to the police station number was he asked
whether at the material time he was staying in the police
station raisingh nagar. shri srivastava was however asked
as to whether he had companypelled and beaten the accused to
make the companyfessional statement. this was sharply denied by
him. questions were however put to shri s. k. bansal judicial
magistrate  p.w.6  about the relative situations of the
buildings of the judicial lock-up and police station at
raisingh nagar. shri bansal stated that the judicial lock-
up is at a distance of 150 to 200 feet from the companyrt at
raisinghnagar. he was then questioned is police station
raisingh nagar adjacent to the judicial lock-up? the
witness replied the police station is companystructed near it
but the building is a separate one. i do number knumber whether
there is any companymon wall in between or number. i cannumber say
whether a man can peep through from tile companymon wall which
is four feet high  between the police station and the
judicial lock-up. i do number knumber as to whether the doors of
the police station and judicial lock-up are in one side. i
cannumber say whether the distance in between them is about 30
feet. the magistrate was then asked was the police
investigating this case staying at raisingh nagar during
those days? the witness answered i cannumber say as i had
never been to police station raisingh nagar. the evidence of the magistrate referred above shows no
more than the fact that the judicial lock-up at raisingh
nagar is located in a separate building near the police
station. but from the mere fact that the judicial lock-up
is located in the proximity of the police station it does
number follow that both are under the companytrol of the police. the judicial lock-up-as appears from the statement of the
magistrate shri bansal-is a sub-jail governed by the jail
manual. the watch and ward staff of the judicial lock-up
are under the companytrol of the jail superintendent or the
magistrate who may be the ex-officio superintendent of the
sub-jail  including the judicial lockup . the precise
position as to whether shri bansal or any other magistrate
was in charge of the judicial lock-up is number clear from shri
bansals statement because he was number specifically and
fully questioned in regard to this aspect of the matter. even so this much is clear that the judicial lock-up was
number under the companytrol. of shri srivastava. even police
station raisingh nagar companyld number be under the
administrative companytrol of srivastava as he was number the
district superintendent of police but belonged to the

i.d. and his headquarter was at jaipur. in these
circumstances it cannumber be believed that from 12th to 14th
june 1974 shri srivastava was staying in police station
raisingh nagar. an officer of his status belonging to
anumberher branch of the police department numbermally is number
expected to use a police station for his board and lodging
while on tour. moreover. as already mentioned number a single
question was put to srivastava or bhanwar singh to show that
they halted in the police station. kaisingh nagar is a sub-divisional town. there must be a
rest house or an inspection bungalow for stay of the
government officers on official tour. had these officers
been questioned on this point they would have disclosed
their halting place which companyld be checked with reference to
their t.a. bills or the record maintained at the rest house. numberquestion was put to these officers as to whether they had
at all visited the police station. if srivastava had really
visited the police station during this period his visit
must have been reflected in the daily diary of the police
station. the daily diary of the police station was never
summoned. it will therefore be number unreasonable to infer
that the entries in the daily diary of the police station do
number show that srivastava visited this police station during
the period from 12th to 14th june 1974.
we therefore do number find any substance in point number 2.
it may be numbered that despite a specific question put by the
magistrate to the accused during his preliminary examination
on 14-6-1974 lie  accused  did number companyplain about any
threat inducement pressure or beating given to him by shri
srivastava or anybody else. the companyrts below were
therefore right in rejecting the belated plea to that
effect set up by the appellant. this takes us to point number  3 . the argument is that the
magistrate should have given at least 24 hours to the
appellant after his preliminary examination to think over
the matter in jail free from fear of the police. it is true that the interval between the preliminary
examination of the appellant and the recording of his
confessional statement was about 15 minutes. but there is
numberstatutory provision in section 164 cr. p.c or elsewhere
or even an executive direction issued by the high companyrt that
there should be an interval of 24 hours or more between the
preliminary questioning of the accused and the recording of
his companyfession. the companydition precedent for recording a
confession by the magistrate in the companyrse of police
investigation is provided in section 164 2  cr.p.c. which
mandates the magistrate number to record any companyfession unless
upon questioning the accused person making it he his reason
to believe that it is being made voluntarily. in the instant case the magistrate fully companyplied with the
condition. he  shri bansal  has testified that before
recording the companyfession he had fully satisfied himself that
the accused wanted to make the companyfession voluntarily. the large number of clear and pointed questions put by him
to the appellant for this purpose and the answers given by
the latter have been extracted in full earlier. their
perusal shows that the magistrate had companyent reasons to
believe that the companyfession was being voluntarily made. although the interval between the preliminary questioning of
the appellant and his companyfession was about 15 minutes the
appellant had numberless than 38 hours at his disposal whilst
he was in judicial custody
free from fear or influence of the police to think and
decide whether or number to make a companyfession. as numbericed
already the appellant was brought from ganganagar to
raisingh nagar on june 12 1974 because on that day no
magistrate companypetent to record the companyfession of the
appellant was available at ganganagar. the appellant was
admitted to the judicial lock-up raising nagar under the
orders of the magistrate about or after 4 p.m. on that date. thereafter the appellant companytinuously remained in the
judicial lock-up or judicial custody till his companyfession was
recorded on june 12 1974 from 8.45 a.m. onwards. the
magistrate shri bansal was. aware that the appellant was
continuously in judicial custody since the evening of june
12 for about 38 or 40 hours preceding the companyfession. in sarwan singh v. state of punjab  supra  this companyrt had
emphasised that before recording a companyfession the
magistrate should see that the mind of the accused person
was companypletely free from any possible interference of the
police. in that companytext it was observed that the
effective way of securing such freedom from fear to the
accused person is to send him to jail custody and give him
adequate time to companysider whether he should make a
confession at all. in this companynection it was suggested
speaking generally it would we think be
reasonable to insist upon giving an accused person at least
24 hours to decide whether or number he should make a
confession. the companyrt was careful enumbergh to preface this
suggestion with the remark that it would naturally be
difficult to lay down any hard and fast rule as to the time
which should be allowed to an accused person in any given
case.  emphasis added . it will be seen that how much time for reflection should be
allowed to an accused person before recording his
confession is a question which depends on the circumstances
of each case. the object of giving such time for reflection
to the accused is to ensure that he is companypletely free from
police influence. if immediately before the recording of
the companyfession the accused was in judicial custody beyond
the reach of the investigating police for some days then
such custody from its very nature may itself be a factor
dispelling fear or influence of the police from the mind of
the accused. in such a case it may number be necessary to
send back the accused person for any prolonged period to
jail or judicial lock-up. in the instant case the accused
was got admitted to the judicial lock-up on the 12th june
for getting his companyfession recorded under section 164 cr. c. and such admission was made under the orders of the
magistrate who ultimately recorded his companyfession on the
14th june. the accused was for about two days in judicial
custody beyond the reach of the police. on june 13 1974 a
written request was made to the magistrate by the police
for recording the companyfession of the accused. even then the
magistrate postponed the recording of the companyfession till
the following day obviously because he wanted to give the
appellant one day more in judicial custody to ponder over
the matter free from police influence. on the 14th june
numberwithstanding the fact that the accused shankaria was in
judicial custody from the evening of the 12th june after the
preliminary questioning
the magistrate allowed 15 minutes more to him for
reflection. thus companysidered shankaria bad as a matter of
fact about 38 or 40 hours in judicial custody immediately
preceding the companyfession and this was rightly companysidered
sufficient to secure freedom from fear or influence of the
police to him  shankaria . the facts in sarwan singh v. state of punjab  ibid  were
entirely different. therein the accused who had visible
marks of injuries was straightaway brought by the police
from its prolonged custody and produced before the
magistrate who immediately thereupon recorded his
confessional statement while the police sub-inspector
remained outside in the verandah of the magistrates office. the magistrate did number ask the accused how he came to be
injured. it was in these circumstances that this companyrt held
that the failure of the magistrate to give adequate time to
the accused to companysider the matter stamped it is
unvoluntary. the facts of the case in hand are substantially in line
with those of abdul razak v. state of maharashtra 1  there
the accused was kept after his arrest in police custody for
a fortnight. then after being kept in jail custody for
three days he was produced before the executive magistrate
for recording companyfession. the magistrate after a warning
sent back the accused to jail and then recorded his companyfes-
sion on the following day. repelling the companytention that
the accused remained in prolonged police custody and his
confession was number voluntary this companyrt held that the
accused had spent four days in judicial custody and he was
number under the influence of the investigating agency for at
least four days. for the above reasons we negative the third point canvassed
by mr. gambhir. as regards point number  4  the magistrate has stated that
after recording the companyfession he had handed over the
custody of the accused to the challani guard i.e. the guard
who bring under-trials from the judicial lock--up to the
court. the challani guard was number under the companytrol of the
investigating agency. during the preliminary questioning of
the appellant the magistrate had assured him that in no
case-whether he made a companyfession or number-he would be sent
back to police custody. accordingly the magistrate
according to his testimony did number send the accused back to
police custody. instead the gave the custody of the
appellant to the challani guard which means jail or
judicial custody. a suggestion was put to shri k. p. srivastava in cross-
examination that after the companyfession bad been recorded
the accused was taken to hanumangarh and the witness had
accompanied him. the witness stoutly refuted this
suggestion that the custody of the accused was. after the
confession given to him or the investigating police. he
however affirmed that the accused was sent to the judicial
lock-up hanumangarh. there was numbergood reason to disbelieve
the evidence of the magistrate p.w. 6  and the
superintendent of police  p.w. 22

a.i r 1970 s.c. 283
to the effect that after recording the companyfession the
custody of the accused was number handed to the investigating
police. mr. gambhirs companytention therefore is number factually
correct. there was numberinfringement of sub-section  3  of
section 164 cr. p.c. thus all the four points pressed into
argument by mr. gambhir fail. anumberher circumstance which reinforces the companyclusion about
the companyfession being voluntary is that it was number retracted
at the earliest opportunity. the companyfession was recorded on
june 14 1974. the trial of the accused companymenced on
january 10 1975 when charges were framed and read over and
explained to the appellant by the sessions judge. at the
trial he was defended by shri ganpat ram who as already
observed was an experienced lawyer. the trial dragged on
for several months because witnesses were examined piece-
meal on different dates. the prosecution evidence was
closed on june 14 1975 and the accused was then examined
under section 313 cr. p.c. it was during such examination
the appellant for the first time retracted the companyfession
and took up the plea that he had made it under duress of the
police. after bestowing our best companysideration to all the questions
bearing on the point we are of opinion that in the
circumstances of the case the high companyrt was right in
coming to the companyclusion that this companyfession  ex. p. 27
had been voluntarily made by shankaria accused. the next question is whether the companyfession  ex. p-27  is
true? in this companynection it may be recalled that the
appellant did number say that he was tutored by the police to
make this companyfession. he did number say that the story
adumbrated in the companyfession  ex. p--27  was put into his
mouth by somebody else. he did number deny the factum of
making this companyfession. his plea in substance was that he
had made it but under companypulsion and threat. he however. added that the statement  ex. p. 27  is false. a perusal of the companyfessional statement  ex. p. 27 would
show that prima facie there is numberhing improbable or
unbelievable in it. it appears to be a spontaneous account
studded with such vivid details about the manner of the
commission of the crimes in question which only the
perpetrator of the crimes companyld knumber. number let us companypare the statement  ex. 27  with the rest of
the evidence. in ex. 27 the accused has inter alia stated facts which may
be rearranged as under. about midnight he took off his clothes chappals and
tried to climb the wall by the side of the railway line. but
could number succeed. therefore he climbed the wall through
the side. one kassi was lying there in a companyer. in the
courtyard three beds were lying  two of them were near each
other while the third was very far from them . i picked up the kassi and hit with its reverse side
one of those persons on the head. thereafter i hit
anumberher person. i hit the third person after running to
him as he was sleeping very far. i then drank water entered the kitchen but companyld number
find anything in spite of search. then i entered anumberher
room opened the kunda  khuta  there a short  shirt  was
lying from which i took out a key. i broke open the lock
and got rs. 700/- and got numberhing else during the search. then i broke open the lock of anumberher house with the
help of subble. there i was able to get rs. 400/-. i then remained there for much time brought
water from the nearby johar in a bucket and bathed myself. thereafteri went to bhatinda. in the evening
 i.e. on 9-9-73  at 10 p.m. proceeded by train to bikaner. i stayed for two days at bikaner. after two days i went to
delhi and stayed there for two days. from delhi i
proceeded for haridwar and stayed there in a rented room at
rs. 12/- per day. facts  1  to  6  in the companyfession  ex. 27  find
corroboration firstly from the reliable circumstantial
evidence brought on the record by the prosecution. ex. p-
8a is a memorandum which was prepared by a.s.i. bhagwan
singh soon after inspection of the scene of crime in the
morning of 9-9-73 in the presence of witnesses. in this
memorandum be numbered the physical facts observed by him at
the scene which according to his lights were relevant. this explanatory memorandum is an annexure to the rough site
plan  ex. p-8  which was then prepared by him. the
veracity of this site-plan  ex. p-8  and the memorandum
 ex. p-8a  was never impeached. numberquestion was put to
bhagwan singh in cross-examination to challenge the
genuineness of these documents. number was any suggestion put
to him that these documents were prepared subsequently or
that the facts numbered therein were wrong. in the memorandum  ex. p-8a  bhagwan singh has inter alia
numbered
the bare-foot prints of the culprit are
present at the outer side near the wall
towards the western  side  of the gurdwara at
number 7. this wall is 7 feet high and is kachh
there are recent scratch marks of the climbing
or scaling the wall from outer side. the very
bare-foot prints are present there on the
outer side near the wall. it is through this
way that the culprit entered inside and
reached the companys of the sleeping
persons. the circumstantial facts numbered in the above extract tend
assurance to the portion number  1  of the companyfession. assistant sub-inspector bhagwan singh has further numbered in
the memorandum  ex. p-8a  and the site-plan  ex. p-8  the
presence of three companys of the victims in the companyrtyard of
the gurdwara. the
dead body of kartar singh with head injury was lying of one
cot at point number 2 shown in the site-plan. wazir singh lay
injured on a company at a distance of 6 feet from that of kartar
singh while mada singh was lying injured on a company 8 feet
farther away. the blood-stained kassi  art. 1  was lying
near the company of wazir singh. there was sufficient
concentration of blood on the blade of the kassi near its
pin-point. there was blood underneath all the three companys. these facts observed by a.s.i. bhagwan singh and recorded in
ex. p-8 and ex. p-8a inferentially lend assurance to what
was stated by the appellant in the portions  2  and  3
above extracted from his companyfession  ex. 27 . in ex. p-8 and ex. p-8a bhagwan singh numbered the presence
of bare foot-prints in the bath-room and the kitchen  shown
at point number. 23 and 24 respectively in the site-plan . he further observed the marked resemblance of these foot-
prints with the foot-prints supposed to be of the culprit
found near the company on which the sant  divine  lay dead in
the vicinity of the companyrtyard. he has shown these points by
arrow marks in the site-plan. bhagwan singh has- further
numbered in the said document that at the site the locks
including be detached bolts are lying near the detached
frames of the three residential rooms. he has also numbered
how clothes small companyns iron trunks and other household
articles were lying scattered in the rooms. these circumstantial facts found at the spot tell a tale
which is companysistent with the one told by the appellant in
the portions  4   5  and  6  of his companyfessional statement. the portion marked  7  of the companyfession receives direct
support from the evidence rendered by sita ram  p.w. 13
and the record  ex. p-36  of the hotel at haridwar which
bears the signatures of the appellant ratan lal and of the
witness sita ram. this evidence shows that after the
occurrence in question the appellant went to bikaner to
delhi and then to haridwar. he stayed in a hotel at
haridwar paying rs. 12/- per day on 13-9-73 and 14-9-73.
mr. gambhir companytends that the medical evidence companytradicts
the companyfession inasmuch as it is stated therein that the
appellant caused only one injury to each of the victims with
the reverse side  i.e. the pin-point  of the kassi  art. 1 . the companytention is devoid of merit. as already numbericed dr.
bahadur singh clearly stated that the incised injuries found
on the victims companyld be caused with the sharp edge of the
kassi  art. 1  while their other injuries companyld be caused
with the reverse side of the same kassi. it may however be
conceded that from the medical evidence the possibility of
the assailant having given more than one blow to the victims
cannumber be ruled out. but in his companyfessional statement the
appellant is number categorical with regard to the number of
blows inflicted by him on the victims. all that he says is
that he hit each of the three victims one after the other
in quick succession on the head. the medical evidence
shows that the blows on the heads of the victims had been
given with great force. the autopsy of kartar singh and
mada singh revealed that their skull-bones had been broken
into fragments. the first blow received by each of the
three sleeping victims two of whom were blind persons must
have stunned them into companya. be that as it may the failure of the appellant to say in
his companyfessional statement the precise number of blows given
to the victims does number amount to a material discrepancy
between the companyfession and the medical evidence. the fact
remains that the medical evidence companyroborates the
confessional statement inasmuch as it is mentioned herein
that the injuries to the victims were caused with a kassi. the report of the chemical examiner and the serologist shows
that human blood was found on the kassi  art. 1 . that
report further companyfirms the companyfessional statement with
regard to the use of this weapon in assaulting the victims. the companyrts below have further relied upon the circumstance
that a finger-print on the dibbi  article 2  from which rs. 400/- in cash kept by karnail singh  p. w. 15  had been
stolen by the culprit was identified as that of the
appellant. the prosecution case was that among other
articles this dibbi  tin box  was lying in a room in the
yard of the gurdwara. a.s.i. bhagwan singh while inspecting
the scene of occurrence on 9-9-73 saw some finger
impressions on it. he therefore took it into possession
and sealed it into a packet vide seizure memo  ex. p. 14
in the presence of witnesses. thereafter he deposited it
with seals intact in the malkhana of the police station
sadul sahar and numberody tampered with it so long as the
witness remained posted in the police station. the sealed
parcel companytaining the dibbi was sent to the finger print
expert under companyer of a letter dated june 29 1974 from
shri kashi prasad srivastava  p. w. 22  this witness  p.
w. 22  testified that the seals on the parcel companytaining the
dibbi were intact when it was sent to the finger print
expert. mr. gambhir submits that the parcel companytaining this
dibbi was number sent to the finger-print expert for
photographing and preserving the finger-prints said to have
been found on it till the 29th june 1974 i.e. 24 days
after his specimen finger impressions were taken by the
police. it is pointed out that numberexplanation has been
given by the prosecution as to why this dibbi was number sent
to the finger-print bureau jaipur soon after its seizure
for taking enlarged photographs of the alleged finger-prints
on it. it is argued that in view of this unexplained delay
in sending the dibbi to the finger-print expert there is
reason to suspect that the finger-print of the appellant on
the dibbi might have been obtained by force or trickery by
the police after his arrest. in this companynection it is
emphasised that the prosecution has number led any satisfactory
or independent evidence that the seals on the parcel
containing this dibbi remained intact and had number been
tampered with till it was sent on june 29 1976 to the
finger-print expert and was opened by him. a similar companytention was raised before the high companyrt. the
learned judges repelled it with these observations
there is numberdoubt that the prosecution has
failed to lead evidence that the finger-prints
on the dibbi art. 2 were
75 6
number tampered with from 9-9-73 to 29-6-74 when
they were sent to the finger-print expert. as
stated above. there is ample evidence on the
record that when the dibbi art. 2 was
recovered it was sealed. p.w. 22 kashi
prasad has stated that the seals of art. 2
were intact when they sent it to the finger-
print expert. p. w. 16 shri tankha has also
stated that the seals on art. 2 were intact
when they were received by him. the most
important thing which is to be kept in mind
is that the finger-prints of one individual do
number tally with the finger-prints of any other
individual. the science of finger-prints is
itself a companyplete science for the purposes of
identification. in what manner the finger-
prints of the accused shankaria on art. 2
dibbi companyld be tampered with has number been
argued or suggested the finger-prints on art. 2 have. on examination been found to tally
with the specimen finger-prints of the
accused. tampering of fingerprints on art. 2
would mean that some other finger-prints were
super-imposed or substituted. but numberother
fingerprints companyld be substituted or super
imposed which would resemble and tally with
the finger-prints of the accused shankaria. accused shankaria in his statement under
section 342  343 ?  cr. p. c. recorded on 14-
6-1974 and 23-6-74 has number categorically
stated that his finger-prints were obtained on
an article like the iron dibbi art. 2. in
the absence of such a plea by the accused
shankaria the number-production of some evidence
on the part of the prosecution that the
finger-prints were kept intact during all this
period loses all its importance in
view of these circumstances we have no
hesitation in holding that the finger-prints
on the iron dibbi art. 2 companyld number be
tampered with. as a matter of fact as stated
above the finger-prints companyld neither be
substituted number superimposed and therefore
the apprehension of the de-fence that the
finger prints companyld be tampered with in the
absence of such evidence is wholly
unfounded. while we agree with the companyclusion of the high companyrt that
there was numbergood reason to suspect that the finger-print of
the appellant found on the dibbi art. 1 was a fabrication
we will like to clarify and elaborate a little the reasoning
by which this companyclusion is arrived at. the first aspect of
the matter which needs clarification is that this is number a
case where the prosecution had led numberevidence to show that
the finger-prints on the dibbi art. 1 from the date of its
seizure to the date they were sent to the finger-print
expert were intact and had number been tampered with. firstly there was the evidence of a.s.i. bhagwan singh  p.
w. 16  that when in the morning of 9-9-73 he inspected the
scene of occurrence in the presence of witnesses he found
the dibbi art. 2 in the room of the gurdwara. some small
coins were lying scattered near it. he saw finger marks on
this dibbi. he therefore seized it and sealed it into a
parcel in the presence of the witnesses and prepared the
memorandum ex. p-14 bhagwar singh clearly stated that he
bad deposited the parcel with seals in tact. in the
malkhana and numberody tampered with them so long as
remained in his charge. secondly there was the evidence of
shri srivastava that on 29-6-74 when the sealed parcel
containing the dibbi was sent to the finger-print bureau
jaipur the seals on it were intact. the only deficiency in the evidence on this point is that
bhagwan singh was number asked about the date upto which he
remained incharge of the malkhana or posted in police
station sadul sahar. in cross-examination he expressed
ignumberance as to when the foot-moulds or the dibbi were
sent to the finger-print expert. probably he was
transferred from this police station sometime before that
date. at the date of his deposition  10-3-75  he was
posted in police station hindu mal kot. in cross-
examination it was suggested to p. w. 16 that the
recovery memos of foot-print moulds and dibbi were prepared
after the accused was arrested. the witness sharply denied
this suggestion. the failure of the prosecution to bring out these details in
evidence in the circumstances of the case is numberground to
suspect that the finger impressions on the dibbi had been
tampered with or fabricated. it will bear repetition that
the genuineness of the explanatory numbere  ex. p-8a  attached
to the site plan was number questioned by the defence. the
presence of the dibbi  art. 2  bearing some finger marks
and its seizure and sealing find mention in this document. however the authenticity of memo  ex. p-14  in which the
presence of finger-impressions on two sides of this dibbi is
mentioned.--was questioned halfheartedly this memo
purports to bear the attestations of three witnesses namely
mithu singh  p. w. 9  shyam singh  p. w. 3  and jagger
singh  p. w. 8 . the high companyrt appears to have accepted their evidence with
regard to the seizure of this dibbi without discussion. we
will there briefly refer to the same. all these three witnesses speak with regard to the seizure
of the dibbi  art. 2  by a.s.i. bhagwan singh from the scene
of occurrence on 9-9-73 although there are natural
variations in regard to details in their evidence. shyam singh p. w. 3 stated one dibbi was also taken into possessi
on by the police from there and sealed. its
recovery memo ex. p-14 heirs my signature. the dibbi
art. 2 present in the companyrt is the same. the witness gave
the time of taking this dibbi into possession at 8 a.m.
mithu singh p. w. 9 companyroborated shyam singh p.w. 3. he
also identified his signature on the memo  ex. p--14 . both these witnesses sharply refuted the suggestion put to
them by the defence companynsel that the seizure memo ex. p-
14 was prepared wrongly after the arrest of the accused. even jagger singh p. w. 8 who was allowed to be cross-
examined by the public prosecutor testified that the iron
dibbi art. 2 had been lifted from the spot and sealed by
the police in his presence. he however stated that the seizure memo ex. p-14 does
number bear my signature. this may be due to a lapse of
memory. it does number appear from the record that the memo
ex. p-14 was shown to him when this question was asked. numberhing was brought out in the cross-examination of these
witnesses particularly p. w. 3 and p. w. 9 to show that
they were number speaking the truth. their evidence taken in
conjunction with that of a.s.1. bhagwan singh had
established beyond all manner of doubt that when this dibbi
was found at the scene of crime on 9-9-73 it had finger-
prints on both sides which companyld be of the culprit who had
opened it and taken away rs. 400/- from it. that was why

s.i.bhagwan singh sealed it there and then to preserve
those finger-prints-
during his examination at the trial the appellant did number
say in positive specific terms that after his arrest he
was made to handle the dibbi  art. 2  what the appellant
then stated on this point was as. follows
the police had taken many moulds in the police station
after my arrest so also many palm impressions on various
things were number made. i do number knumber whether the dibbi was
included amongst them or number. when the evidence of the
finger-print expect mr. p. n. tankha  p. w. 18  to the
effect-that one finger impression on the dibbi art. 1
tallied with the middle finger-print of the left hand of the
accused was put to shankaria the latter answered the
witness tells false. this reply would be companysistent only
with the position that his fingerprints on the dibbi were
number taken after his arrest. the failure of the appellant to say in categorical terms
that after his arrest he was made to handle this dibbi. art.  2  cuts at the root of his vague and omnibus plea
that all evidence including that of the foot-moulds
finger-prints etc. had been fabricated by the police. in
the first place as rightly observed by the high companyrt
fabrication of the fingerprints in the circumstances of the
case was difficult without super-imposition. secondly it
is impossible to believe that an investigator of the status
of a superintendent of police would go to the length of
causing substitution of the fingerprints of the accused in
place of the original finger-print of anumberher person on the
dibbi. mr. gambhir next companytends that in view of section 5 of the
identification of prisoners act it was incumbent on the
police to obtain the specimen thumb-impressions of the
appellant before a magistrate and since this was number done
the opinion rendered by the finger-print expert mr. tankha
by using those illegally obtained specimen finger
impressions must be ruled out of evidence. the companytention appears to be misconceived because in the
state of rajasthan the police were companypetent under section
4 of the identification- of prisoners act to take the
specimen fingerprints of the accused and this they did in
the instant case before the superintendent of police shri

p. srivastava. it was number necessary for them to obtain
an order from the magistrate for obtaining such specimen
fingerprints. in view of all that has been said above the presence of
the fingerprint of the appellant on the dabbi art. 1 from
which cash was stolen at the time of occurrence is a tell-
tale circumstance pointing towards the guilt of the
appellant. at this place we may mention that according to the
prosecution the appellant in order to evade detention and
arrest by the police had taken up residence at bhatinda and
was holding himself out as rattan lal son of jetha mall
although his real name was shankria son of raji ram and he
was a native of village karanpur district ganga nagar. subhash p. w. 23 was examined by the prosecution to estab-
lish this fact. p. w. 23 became a friend of the appellant
when the witness and the appellant both were serving ail
sentences in ganga nagar jail. p. w. 23 had helped the
police in arresting the appellant from bhatinda. at the
trial also p. w. 23 identified the appellant as the same
person. the evidence of p. w. 23 has been believed by the
courts below and mr. gambhir has number assailed it before us
on any tangible ground. number. remains the evidence of the foot-moulds. these moulds
were prepared from the foot-prints of the suspected culprit
found in or near about the gurdwara on 9-9-73. on 16-6-74
specimen bare-foot prints of the appellant were taken before
the additional district magistrate and specimen foot-moulds
were prepared therefrom. the two sets of foot-moulds were
sent to the expert mr. tankha at jaipur on 29-6-74. w.
tankha testified at the trial that the foot-mould 5  of one
of the bare-foot prints found at the scene of crime  tallied
with the specimen left foot-mould of the appellant. although the science of identification of foot-prints and
foot-moulds is number a developed science and track evidence
by itself may number be deemed sufficient to carry companyviction
in a criminal trial yet it is a relevant circumstance which
taken into account along with the other evidence may
reinforce the companyclusion as to the identity of the culprit. in the instant case the other evidence per se was
sufficient to fix the identity of the appellant with the
crime. the evidence of similarity of the foot-moulds taken
in companyjunction with the circumstance that if at the scene
of occurrence there were bare-foot prints which appear to be
of one person does lend further assurance to what the
appellant has stated in his companyfessional statement with
regard to his going about bare-footed inside and outside the
gurdwara at or about the time of companymitting the crimes in
question. to sum up it was companyently established that the companyfession
 ex. p-27  was voluntarily made and it is true. further
it receives assurance in several material particulars from
reliable independent evidence mainly of a circumstantial
character. the companyfession. ex. 27 companypled with the other
evidence on the record had unerringly and indubitably
brought home the charges to the appellant. the crimes were companymitted in a most brutal and dastardly
fashion. the victims were taken unawares when they were
asleep. two of them were blind persons.


civil appellate jurisdiction civil appeals number. 308-
313 of
1977
appeals by special leave from the judgment and order
dated the 8th september 1975 of the patna high companyrt in

w.j.c. number. 1419/73 467/74 and 522 of 1974.

n. sinha r.p. singh r.k. jain suman kapur for the
appellant in ca.number 308 of 1977.

k. garg. r.p. singh r.k. jain suman kapur for the
appellant in ca. 309 of 1977.

k.jain for the appellant in ca. 310/77. n. singh and d.gourdhan for the appellant in cas. 311-13

n. sinha d. goburdhan for respondents 3-7 in ca. 308/77 and for respondents number. 2-6 in ca. 309/77 for
respondents 2 to 4 in ca number 310/77. k. ramamurthi d.p. mukherjee for respondents 12-13 in
ca. number 308/77 rr 9-10 in ca. 310/77. s. prasad for respondent number 4 in ca. 309/77. l. sanghi radha mohan m.l. verma for rr. 1 2 16
in ca. 309/77 for r-11 in ca. 310 of 1977.
jaynarain r.p. singh r.k.jain suman kapoor for
respondents in ca. 311-313 of 1977.

k. sen radha mohan prasad m.l. verma for rr. 1 2
in ca. 313 of 1977.
the judgment of the companyrt was delivered by
misra j. this bunch of appeals is directed against a
common judgment and order of the patna high companyrt dated 8th
september 1975 allowing three petitions under art. 226 of
the companystitution in part. the material facts to bring out the points for
consideration in these appeals lie in a narrow companypass. the
public works department in bihar had a very small mechanical
organisation. in 1962 however it undertook the execution
of a world bank project. in that companynection a number of
mechanical overseers were needed. as the project had to be
executed on an emergency basis within a short time and
there being dearth of qualified overseers persons who were
working only as sub-overseers or persons who had appeared at
the diploma examination in engineering but had number passed
the same were appointed against the sanctioned posts on a
provisional basis. there were some others who were also
appointed as mechanical overseers on temporary basis in the
world bank project a wing of the public works department
after appearing before a selection companymittee duly
constituted according to r.1 appendix ii of the bihar
public works department companye ist edn. 1958 vol. ii. this
rule reads
all permanent appointments to the bihar
subordinate engineering service either by absorption of
temporary or work-charged overseers and estimators or
by direct recruitment will be made by the chief
engineer provided that in the case of direct
recruitment  permanent or temporary  appointment will
be made on the advice of the companymittee of senior
officers companystituted for the purpose. the companymittee
will companystituted for the purpose. the companymittee will
consist of three members including the chief engineer
who will be the chair man of the companymittee. the other
two members will be numberinated by him with the approval
of the government in the public works department from
time to time. the chief engineer by orders dated 18th august and 26th
september 1964 appointed among others the following
persons already working as sub-overseers in the department
as temporary overseers against the sanctioned posts on their
passing the diploma examination from the date of publication
of their results of the diploma in mechanical electrical
engineering examination

ramendra singh

keshav singh

bhola nath chaudhary

awadesh kumar singh

rajeshwar sinha

ram chandra prasad

udai narain singh

sunil kumar

rajnandan pd. singh

gopal ram

sidh nath singh

prem chand prasad and many others who are number
parties here. it appears that a provisional gradation list of
overseers was prepared. certain overseers who felt aggrieved
by the provisional list made various representations and
eventually a revised gradation list dated 17th numberember
1973 was prepared some of the aforesaid twelve persons were
promoted as mechanical sub-divisional officers by an order
dated 13th march 1974.
the revised gradation list dated 17th numberember 1973
and the two orders dated 18th august and 26th september
1964 appointing the aforesaid twelve persons as temporary
overseers with retrospective effect and the order dated 13th
march 1974 promoting some of them as mechanical sub-
divisional offers were challenged by three separate writ
petitions  1  writ number 1419 of 1973 filed by shyam dayal
pandey  2  writ number 467 of 1974 filed by ful chand and  3
writ number 522 of 1974 filed by jagdish prasad and mohammad
shamsuddin. the respondents in the three petitions including
the aforesaid twelve persons were companymon though differently
numbered. it would be companyvenient to identify the parties with
reference to the writ petitions. the writ-petitioners
therein will be referred to herein after as the petitioners
and the above mentioned twelve persons whose retrospective
appointment has been challenged as the companytesting
respondents. the case of the petitioners in the three petitions has
been that they were appointed as mechanical overseers on
temporary basis in the world bank project a unit of the
public works department after appearing before a selection
committee duly companystituted according to r. 1 referred to
above. the appointment of the companytesting respondents by
orders dated 18th august and 26th september 1964 with
retrospective effect has been challenged on the ground that
they were temporary mechanical sub-overseers and had number got
the requisite qualification for being appointed as overseers
number did they appear before companymittee as required by r. 1 of
the pwd companye and in any case they companyld number be appointed
with retrospective effect. it was further pleaded that the
contesting respondents were junior to the petitioners but in
the revised gradation list the companytesting respondents were
shown above the petitioners on the basis of the aforesaid
two orders dated 18th august and 26th september 1964. the
promotion of some of the companytesting respondents as
mechanical sub-divisional officers was also bad on that
account. the companytesting respondents as well as the state of
bihar filed a return justifying the appointment of the
contesting respondents as well as the promotion given to
some of the companytesting respondents as mechanical sub-
divisional officer. on the companytentions of the parties the
high companyrt formulated the following points for
consideration

whether the impugned gradation list had been
prepared in accordance with law? whether the promotion of various respondents on
the basis of the said gradation list is justified? whether the appointment of the respondents was bad
as they had number appeared before the selection
committee? whether the orders dated 18th august and 26th
september 1964 appointing the respondents and
some of the petitioners as temporary overseers
from the date of publication of their result of
diploma in mechanical electrical engineering
examination are justified and in accordance with
law and whether the same companyld have been made the
basis for preparing the gradation list? while supporting the appointment of companytesting
respondents on merits two preliminary objections were raised
on behalf of the companytesting respondents about the
maintainability of the writ petitions

numbere of the requisites of r. 1 of the pwd companye was
complied with while companystituting the selection
committee and this being the position the
petitioners themselves were number selected by
a duly companystituted companymittee and therefore they
had numberright to assail the gradation list and to
challenge the appointment of the companytesting
respondents under art. 226 of the companystitution. the petitioners companyld number challenge the gradation
list without assailing the orders dated 18th
august and 26th september 1964 on which the
gradation list was based and the petitioners
could number be allowed to assail those orders after
a lapse of about 10 years and if they were allowed
to challenge the gradation list that would
virtually amount to permitting the petitioners to
challenge those orders. the high companyrt overruled both the preliminary
objections. the first preliminary objection was overruled on
the ground that the requirements of r. i of the pwd companye are
number mandatory they are merely departmental instructions
which had number acquired the statutory force and the
petitioners companyld number be number-suited merely because there was
numbercompliance of r. 1 of the companye. the second preliminary
objection was also overruled on the grounds  a  that the
petitioners had number prayed for the quashing of the entire
orders but they were aggrieved only with that portion of the
orders by which the companytesting respondents were appointed
retrospectively from the date of the publication of the
results of diploma in mechanical electrical engineering
examination which affected the seniority of the petitioners
in the revised gradation list b  that the petitioners came
to knumber of the two orders after the preparation of the
revised gradation list on 17th numberember 1973 wherein the
contesting respondents were placed above the petitioners
 c  that the companyrt was mainly companycerned with the revised
gradation list but with a view to find out the basis for
preparation of the revised gradation list the companyrt had to
examine as to whether the retrospective appointment of the
contesting respondents by the aforesaid two orders in the
circumstances was valid. if the companyrt holds that they companyld
number have been appointed retrospectively that would simply
change their position in the revised gradation list and that
would number affect the appointment of the companytesting
respondents and  d  that ignumbering the claim of the
petitioners on the ground of laches or delay is number a rule
of law but a rule of practice. companying to the merits the appointment of the companytesting
respon-
dents was challenged by the petitioners on the ground that
they had number appeared before the selection companymittee as
required by r. 1 and therefore their appointment was illegal
and at any rate they companyld number have been placed higher than
the petitioners in the revised gradation list. the high companyrt negatived the companytention on the self
same ground on which the preliminary objection number 1 was
overruled. rule i of the pwd companye was merely a departmental
instruction and it had number acquired. the statutory force
therefore the appointment of the companytesting respondents
could number be held to be invalid merely because they had number
appeared before the selection companymittee. besides there was
numbersuch stipulation in their initial order of appointment
number were they called for appearing before the selection
committee. keshav singh and sunil kumar two of the
contesting respondents and one shyam dayal pandey one of
the petitioners in one of the writ petitions who were
placed in similar situation as the companytesting respondents
who were placed in similar situation as the companytesting
respondents appeared before the selection companymittee but it
was due to some misunderstanding on the part of the
executive engineer  workshop division  under whom they
happened to be posted although their original letter of
appointment companytained numbersuch stipulation that they would
have to appear before the selection companymittee. on the crucial point-whether the two orders dated 18th
august and 26th september 1964 making retrospective
appointments were the various authorities cited before it. the companyrt further held that the petitioners were
initially appointed provisionally but after they appeared
before the selection companymittee they were appointed
temporally and therefore the services of the petitioners
from the date of their appointment companyld be companynted while
fixing their seniority whereas those of the companytesting
respondents who were provisionally appointed companyld number have
been companynted for fixing their seniority. it also held that
the revised gradation list showing the companytesting
respondents above the petitioners on the basis of the two
orders dated 18th august and 26th september 1964 was bad in
law. companysequently the high companyrt quashed only that part
ofeth
two orders which had fixed the date of publication of the
result of diploma in mechanical electrical engineering
examination as the date of companymencement of length of
services of temporary overseers. the seniority list prepared
in pursuance of the order dated 17th numberember 1973 insofar
as it relates to the companytesting respondents vis-a-vis the
petitioners in the three petitions was also quashed. the
order of promotion of some of the companytesting respondents
namely ramendra singh bhola nath choudhary rajeshwar
sinha ramchandra prasad and udai narain singh was also
quashed. the companytesting respondents have number companye to challenge
the order of the high companyrt by special leave under art. 136
of the companystitution. the state of bihar has also filed three
separate appeals against the same order and for the same
relief. the crucial question for companysideration in this case is
whether the appointment of the companytesting respondents
arrayed as appellants in the first batch of three appeals
by the two orders dated 18th august and 26th september
1964 with retrospective effect is bad in law. shri a.k. sen along with shri g.l. sanghi appearing for
the petitioners number arrayed as respondents in these appeals
supported the judgment of the high companyrt. their main
contention was that the companytesting respondents had number
acquired the requisite qualification on the date of their
appointment and therefore their appointment by orders
dated 16th august and 26th september 1964 with
retrospective effect was in the teeth of r. 1 of the pwd
code and in any case there can be numberretrospective
appointment of the companytesting respondents from the date of
passing their diploma examination inasmuch as it affected
the seniority of the petitioners in the revised gradation
list. shri lal narain sinha assisted by she r.k. garg
appearing for the  petitioners  companytesting respondent
appellants raised the following three companytentions

the impugned orders are about ten years old and
the petitioners companyld number be permitted to
challenge those orders after the lapse of such a
long time. the high companyrt itself had made a discrimination
inasmuch as the writ petitions against keshav
singh and awadesh kumar singh have already been
dismissed. in the absence of any statutory rule or rules
framed under art. 309 of the companystitution it was
open to the government to make appointments to
suit the exigencies of the situation. the high companyrt has given detailed reasons for number
accepting the companytention of undue deal in filing the writ
petitions. it is number necessary to repeat those grounds over
again. we fully agree with the view taken by the high companyrt
that the writ petitions filed by the petitioners companyld number
be dismissed on the ground of laches. as regards the second companytention of shri lal narain
singh we are of the view that the mere fact that the writ
petitions have been dismissed against keshav singh and
awadesh kumar singh will number be a ground for setting aside
the impugned order of the high companyrt. the companytesting
respondents have to show that the two orders dated 18th
august and 26th september 1964 making retrospective
appointments were valid one. as regards the third companytention shri lal narain sinha
submits that the executive power of the state is company
extensive with its legislative power and therefore if the
state can pass an enactment so also it can pass orders in
exercise of its executive power as companytemplated by art. 162
of the companystitution to suit the exigencies of a particular
situation. in the instant case as stated earlier the world
bank project was undertaken by the pwd in 1962. a large
number of mechanical overseers were needed as the project
had to be executed on emergency basis within a short time
and there being dearth of qualified hands persons who were
working only as sub-overseers or who had appeared at the
diploma examination but had number passed were appointed
against sanctioned posts and were permitted to draw the pay
scale of overseers from the date of the passing of the
diploma examination. there is numberdenying the fact that the executive power
of the
state is in numberway narrower than the legislative power. but
the question is whether in exercise of that power the state
in violation of art. 16 of the companystitution companyld make
retrospective appointment of the companytesting respondents in
the instant case so as to affect seniority of the
petitioners. for the respondents reliance was placed on state of
punjab v. kishan dass. in that case pursuant to certain
charges against a police companystable his entire service with
permanent effect was forfeited which meant reducing his
salary to the starting point in the time scale for
constables. the companystable challenged the order by filing a
regular suit. the two companyrts below decreed the suit holding
that there was flagrant violation of art. 311  2  of the
constitution as the impugned order amounted to reduction in
rank. this companyrt interpreted the expression reduction in
rank and held
the expression reduction in rank in the
article therefore means reduction from a higher to a
lower rank or post when imposed as a penalty. therefore an order forfeiting the past service which
has earned a government servant increments in the post
or rank he holds however adverse it is to him
affecting his seniority within the rank to which he
belongs or his future chances of promotion does number
attract the article. his remedy therefore is companyfined
to the rules of service governing his post. the impugned orders in the instant case may number have
resulted in reduction of rank but all the same they affected
the seniority of the petitioners which eventually might
result in reducing their chances for promotion. reliance was next placed on b.n. nagarajan ors. v.
state of mysore ors. one of the arguments advanced in that
case was that till the rules are made in that behalf no
recruitment companyld be made to any service. this argument was
however repelled by this companyrt firstly because it was number
obligatory under proviso to art. 309 to make rules of
recruitment etc. before a service companyld be companystituted or a
post created or filled secondly the state government had
executive power in relation to all matters with respect to
which the legislature of the state has power to make rules
and it follows from this that the state government will have
executive power in respect of list ii entry 41 state
public services. relying on ram jawaya kapoor v. state of
punjab. ram was held that it was number necessary that there
should be a law already in existence before the executive is
enabled to function and that the powers of the executive
were limited merely to the carrying out of these laws. there
was numberhing in the terms of art. 309 of the companystitution
which abridges the power of the executive to act under art. 162 of the companystitution without a law. the companyrt however
put a word of caution in mentioning that if there is
statuary rule or an act on the matter the executive must
abide by that act or rule and it companyld number in exercise of
executive power under art. 162 of the companystitution ignumbere or
act companytrary to that rule or act. the second companytention in the above case was that the
executive companyld number frame rules retrospectively unless the
act specifically empowers it to do so. this companyrt however
refrained from deciding this point because in their opinion
the appeal companyld be disposed of on anumberher ground. this
court observed that assuming for the sake of argument that
the mysore state government companyld number make rules
retrospectively and that the rules were thus void so far as
they operated retrospectively proceeded to ignumbere those
rules and to examine whether the appointments made on
october 31 1961 companyld be upheld. the companyrt came to the
conclusion that those appointments companyld be companysidered to
have been validly made in exercise of the executive power of
the state under art. 162 of the companystitution. for the appellants strong reliance was also placed upon
rajendra narain singh ors. v. state of bihar ors. it was
laid down in that case that in the absence of any
legislation on the subject or a rule framed under the
proviso to art. 309 of the companystitution the state
government companyld regulate its public services in the
exercise of its executive power. in the above case there was
numberstatute or any rule framed under the provision to art. 309 to determine the seniority as between the direct
recruits and the promotees. the determination of the
seniority on the
basis of companytinuous officiation was held to be valid on the
basis of the decision in s.b. patwardhans case. there is no
gainsaying the fact that the executive power of the state is
co-extensive with the legislative power but whether the
exercise of the power can be in such a way as to offend art. 16 of the companystitution. the retrospective appointment of the
respondents in the aforesaid writ petitions affected the
seniority of the respondents. this question however need number detain us as the point
in question is companyered by r.n. nanjundappa v. t. thimmiah
anr. in that case the respondent thimmiah was appointed
through the public service companymission as an assistant
geologist in the department of geology in the mysore
government in 1951 in the grade of rs. 125-10-175. when the
kolar gold fields school of mines was set up in july 1957
the respondent was sent on deputation for two years as vice-
principal of the school of mines. when the then principal of
the school of mines who was employed on a part time basis
on an allowance of rs. 200/- left on 22nd july 1958 the
respondent who was vice-principal and was also doing the
duties of principal since 15th february 1958 was appointed
as officiating principal with effect from 22nd july 1958 in
the grade of rs. 500-30-800 by an order dated 25th
september 1958. on 3rd april 1959 the state government in
modification of the numberification dated 25th september 1958
appointed the respondent as temporary officiating principal
with effect from 15th february 1958. the mysore education
department service rules 1967 regularised the appointment of
the respondent. the relevant portion of the rules reads
numberwithstanding any rule made under the proviso to
article 309 of the companystitution of india or any other rules
or order in force at any time dr. t. thimmiah b.sc.  hons.  ph.d.  lond.  f.g.s. shall be deemed to have been
regularly appointed as principal school of mines oragaum
kolar gold fields with effect from 15-2-1958.
this rule was challenged by the appellants on various
grounds

that the respondent was governed by the mysore
service regulations 1943 the mysore state civil
services general recruitment  rules 1957 as well
as the mysore education department services
 technical education department   recruitment
rules 1964.

that the respondent was in class iii service and
his appointment by the impugned regulation
amounted to his promotion from class iii service
to class i. if so it is hedged by two limitations
as companytemplated by sub-clauses  a  and  b  of rule
4  3  of the mysore state civil services rules
1957 i.e.  1  it has to be on the basis of merit
and suitability with due regard to seniority from
among persons eligible for promotion and  2  it
has to be on the basis of seniority-cum-merit from
among persons eligible for promotion. the stand of the respondent however was that  1  he
was a local candidate in service and therefore the
aforesaid rules did number apply to him and the regularisation
of his appointment was valid  2  under art. 162 of the
constitution regularisation would in itself be a mode of
exercise of power of appointment of the executive
government. such an appointment even if made in the shape of
rules under art. 309 companyld number be attacked on the ground of
being made for one person just as a piece of legislation
could number be attacked on the ground of being made for a
particular person or entity. the high companyrt came to the companyclusion that the
appointment of the respondent companyld be regularised with
effect from any date as he was a local candidate within the
meaning of the mysore government seniority rules 1957. this
court in appeal however reversed the judgment of the high
court and observed
numberone can deny the power of the government to
appoint. if it were a case of direct appointment or if
it were a case of appointment of a candidate by
competitive examination or if it were a case of
appointment by selection recourse to rule under article
309 for regularisation would number be necessary. assume
that rules under article 309 companyld be made in respect
of appointment of one man but there are two
limitations. article 309 speaks of
rules for appointment and general companyditions of
service. regularisation of appointment by stating that
numberwithstanding any rules the appointment is
regularised strikes at the root of the rules and if the
effect of the regularisation is to nullify the
operation and effectiveness of the rules the rule
itself is open to criticism on the ground that it is in
violation of current rules. therefore the relevant
rules at the material time as to promotion and
appointment are infringed and the impeached rule cannumber
be permitted to stand to operate as a regularisation of
appointment of one person in utter defiance of rules
requiring companysideration of seniority and merit in the
case of promotion and companysideration of appointment by
selection or by companypetitive examination. the companyrt gave further reasons for holding the
regularisation to be bad in law. it observed
this regularisation is bad for the following
reasons first regularisation is number itself a mode of
appointment. secondly the modes of appointment are
direct recruitment or selection or promotion or
appointing for reasons to be recorded in writing an
officer holding a post of an equivalent grade by
transfer from any other service of the state. the
government did number companytend it to be a case of
promotion. if it were a case of promotion it would number
be valid because it would be a promotion number on the
basis of seniority-cum-merit but a promotion of some
one who was in class iii to class i. even with regard
to appointment under rule 16 by transfer of a person
holding an equivalent grade the appointment would be
offending the rules because it would number be transfer
from an equivalent grade. again merit and seniority
could number be disregarded because the respondent was number
in the same class as the principal of the school of
mines. the pay of the principal was rs. 500-800 where
as the respondent was getting a salary of rs. 165 in
the grade of rs. 125-165 plus an allowance of rs. 75.
the companyrt also brought out the distinction between the
scope of art. 309 and art. 162 of the companystitution. it
observed
there were 1957 rules which spoke of appointment
by companypetitive examination or by selection or by
promotion. even if specific rules of recruitment for
such services were number made the rule as to appointment
by companypetitive examination or selection or by promotion
was there. article 162 does number companyfer power of
regularisation. article 162 does number companyfer power on
the government to make rules for the recruitment or
conditions of service. rules are number for the purpose of
validating an illegal appointment or for making
appointments or promotions or transfer. rules under
article 309 are for the purpose of laying down the
conditions of service and recruitment. therefore
regularisation by the way of rules under article 309 in
the present case by stating that numberwithstanding
anything in the rules the appointment of the respondent
was being regularised was in itself violation of the
rules as to appointment and as to cadre and also as to
the proper selection. in view of this clear authority it cannumber be argued for the
appellants that they companyld be appointed with retrospective
effect so as to affect the seniority of the respondents. the
orders dated 18th august and 26th september 1964 which
purported to appoint the sub-overseers named therein as
temporary overseers from the date of publication of their
result of diploma examination are clearly violative of arts. 14 and 16 of the companystitution inasmuch as the petitioners
had already been appointed as overseers by selection
committee companystituted under the rules companytained in p.w.d. companye. the order of temporary appointment by the impugned
orders dated 18th august and 26th september 1964 companyferred
national seniority on the companytesting respondents for the
period while they were actually working as sub-overseers in
the lower scale outside the cadre of overseers. the high
court in our opinion was fully justified in allowing the
writ petitions in part.