REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.1050 OF 2005

PANCHO … APPELLANT

Versus

STATE OF HARYANA … RESPONDENT

WITH

CRIMINAL APPEAL NO.1222 OF 2005

PRATHAM … APPELLANT

Versus

STATE OF HARYANA … RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. These two appeals, by special leave, can be disposed of  

by a common judgment as they arise out of the same facts  

and challenge the same judgment and order dated 3/5/2005  

of the Punjab and Haryana High Court.   Criminal   Appeal

No.1050 of 2005 is filed by original accused 2 – Pancho and  

Criminal Appeal No.1222 of 2005 is filed by original accused  

1 – Pratham.  For the sake of convenience, original accused  

1 - Pratham is referred to as “A1-Pratham”, original accused  

2  –  Pancho  is  referred  to  as  “A2-Pancho”  and  original  

accused 3 – Gajraj is referred to as “A3-Gajraj”.   

2. A1-Pratham,  A2-Pancho  and A3-Gajraj  were  tried  by  

the Additional Sessions Judge, Faridabad in Sessions Case  

No.40 of  11.12.2002 /  30.11.1999 for  offence  punishable  

under Section 396 of the Indian Penal Code (for short, “the  

IPC”).   According  to  the  prosecution,  two  more  persons  

were involved in the offence in question viz. Shishu Ram @  

Shishu, who expired after the charge was framed and one  

Bhago, who is absconding.  He is declared absconder.   

3. Shortly stated the case of the prosecution is that PW-1  

Jagat Singh, brother of deceased Kartar Singh lodged FIR  

(Ex-PA) on 8/2/1999 at 8.40 a.m. with PW-12 ASI Keshav  

Ram   at  Sadar  Palwal,  Faridabad.   PW-1  Jagat  Singh  

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reported that on 7/2/1999 deceased Kartar Singh had left  

their house for the Sugar Mill,  Palwal.   He drove his own  

tractor.  He was to bring back two trolleys of sugar cane  

which  were  already  parked  outside  the  Sugar  Mill.  PW-1  

Jagat Singh further reported that on 8/2/1999 at about 7.00  

a.m., they were informed that the dead body of Kartar Singh  

was lying in a pool of blood at a distance of 10 feet from the  

road  in  the  field  of  PW-1  Jagat  Singh,  a  resident  of  

Gopalgarh. Both the trolleys were parked on the road side  

but  the  tractor  was  not  at  the  spot.   PW-1  Jagat  Singh  

further reported that some unknown persons opened fire at  

deceased Kartar Singh due to which he sustained injuries on  

his waist and succumbed to the said injuries.  PW-1 Jagat  

Singh further reported that the said unknown persons had  

taken away the tractor.  

4. It appears that till 31/7/1999, the investigating agency  

did not make any progress.  According to the prosecution,  

on 31/7/1999, A1-Pratham approached PW-4 Nathi  Singh,  

Ex-Member  of  Panchayat  and  told  him  that  on  5/2/1999  

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when he, accused-Shishu and A3-Gajraj were sitting in the  

house of A1-Pratham, A3-Gajraj told them that they were in  

need of money.  A2-Pancho told them that he had a country  

made  pistol.   They  discussed  about  the  Sugar  Mill  at  

Bamnikhera where some farmers came with new tractors.  

They  planned  a  robbery.   They  went  on  a  truck  to  

Bamnikhera  at  7.00  p.m.  where  A3-Gajraj  and  accused-

Shishu  had  a  conversation  with  deceased  Kartar  Singh.  

When the tractor was unloaded, both of them accompanied  

deceased Kartar Singh in his tractor.  Accused-Shishu and  

A1-Pratham  were  standing  outside.   When  the  tractor  

traveled a distance of two killas, A3-Gajraj gave a signal to  

A2-Pancho, who fired a shot at deceased Kartar Singh from  

his  country  made  pistol.   A3-Gajraj  stopped  the  tractor,  

removed the dead body of deceased Kartar Singh and threw  

it in a wheat field.  They left the tractor trolley at the spot  

and ran away with the tractor so as to reach Paramendra via  

Barsana.  A1-Pratham is further stated to have told PW-4  

Nathi Singh that they took the tractor to accused-Bhago and  

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narrated the entire incident to him and asked him to sell the  

tractor and thereafter they went back to their house.  A1-

Pratham is further stated to have told PW-4 Nathi Singh that  

they came back after a couple of days and came to know  

that the tractor could not be sold.  Therefore, they removed  

some  parts  of  the  tractor  and  left  it  on  the  road  near  

Bharatpur.   As  desired  by  A1-Pratham,  he  was  produced  

before PW-24 Inspector Raghbir Singh on 31/7/1999 by PW-

4 Nathi Singh.  PW-24 Inspector Raghbir Singh arrested A1-

Pratham and interrogated him.  According to PW-24 Raghbir  

Singh, during interrogation, A1-Pratham told him that about  

3-4 months back, he along with accused Shishu and other  

accused  had  snatched  a  tractor,  shot  the  driver  of  that  

tractor, thrown his body in the field and taken the tractor  

with them. On the same day, accused-Shishu was arrested  

by PW-24 Raghbir Singh.  

5. According to the prosecution, on 1/8/1999, A1-Pratham  

disclosed  that  he  had  left  the  tractor  on  the  road  near  

Bharatpur,  concealed some parts,  which  had come to  his  

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share i.e. the seat cover, one thin rod along with bumper in  

his field.  In pursuance to this disclosure statement, the said  

articles were recovered at the instance of A1-Pratham.  A  

battery  box  with  one  tool  box  is  stated  to  have  been  

recovered  at  the  instance  of  accused-Shishu.   On  

16/8/1999,  PW-24  Inspector  Raghbir  Singh  arrested  A2-

Pancho  near  Dabchick  on  the  basis  of  suspicion.   His  

personal search led to recovery of a country made pistol of .

315  bore  (Ex-P12)  which  was  taken  into  possession  vide  

recovery  memo  (Ex-PL).   It  was  attested  by  PW-15  

Samunder Singh, brother of deceased Kartar Singh and one  

Hardev.  On a statement made by A2-Pancho, the police also  

discovered an iron pipe and three pieces of rope from under  

stones at Village Barsana which were identified by PW-15  

Samunder Singh to be that of their tractor.  They were taken  

into   possession   vide   recovery   memo (Ex-PM/1).   On  

25/9/1999, A3-Gajraj  was  arrested  and  at  his instance,  

three pieces of ropes are stated to have been recovered.  

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6. Though the accused were charged under Section 396 of  

the  IPC,  learned  Sessions  Judge  was  of  the  view  that  

conviction of the three accused cannot be recorded under  

Section 396 of the IPC as only four persons had participated  

in  the  crime.   Learned  Sessions  Judge  was  of  the  view  

further that A2-Pancho could be convicted under Section 302  

of the IPC simplicitor and A1-Pratham and A3-Gajraj could  

be convicted under Section 302 read with Section 34 of the  

IPC.  According to him, all the accused were also liable to be  

convicted  under  Section  392  of  the  IPC.   So  far  as  A2-

Pancho is concerned, learned Sessions Judge sentenced him  

to  death  for  offence  under  Section  302  of  the  IPC  as  

according to him, it was a heinous crime which would have  

wide ramification on the life of agricultural community.  He  

sentenced  A1-Pratham  and  A3-Gajraj  to  undergo  

imprisonment for life under Section 302 read with Section 34  

of  the  IPC.   All  the  accused  were  sentenced  to  undergo  

rigorous imprisonment for  10 years for  the offence under  

Section 392 of the IPC.   

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7. While dealing with the reference under Section 366 of  

the Criminal Procedure Code (for short, “the Code”) and the  

criminal appeal filed by A1-Pratham and A3-Gajraj, the High  

Court  commuted  the  sentence  of  death  imposed  on  A2-

Pancho to imprisonment for life.  The High Court confirmed  

the sentence of life imprisonment imposed on A1-Pratham  

and  A3-Gajraj.  The  High  Court  maintained  the  sentence  

imposed on the accused for offence under Section 392 of the  

IPC.  

8. We  have  heard  counsel  for  the  parties.   We  also  

requested Mr. Lalit, learned senior counsel to assist us.  In  

deference  to  our  request,   Mr.  Lalit  has,  as  usual,  ably  

assisted us.  

9. There is no dispute about the fact that deceased Kartar  

Singh died on account of firearm injuries.  Evidence of PW-

17 Dr.  Jagmohan Mittal,  who did  the postmortem on the  

dead body  of deceased Kartar Singh is clear on that point.  

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10. Extra-judicial  confession  made  by  A1-Pratham is  the  

main plank of the prosecution case.  It is true that an extra-

judicial confession can be used against its maker, but as a  

matter of caution, courts look for corroboration to the same  

from other evidence on record.  In Gopal Sah  v.  State of  

Bihar1,  this  court  while  dealing  with  an  extra-judicial  

confession held that an extra-judicial  confession is on the  

face of it, a weak evidence and the courts are reluctant, in  

the absence of chain of cogent circumstances, to rely on it  

for  the  purpose  of  recording  a  conviction.   We  must,  

therefore, first ascertain whether extra-judicial confession of  

A1-Pratham inspires confidence and then find out whether  

there are other cogent circumstances on record, to support  

it.  

11. We have already referred to the evidence of PW-4 Nathi  

Singh before whom A1-Pratham is stated to have confessed  

that A2-Pancho had shot dead deceased Kartar Singh with  

country made pistol.   PW-24 Inspector Raghbir Singh has  

1 (2008) 17 SCC 128

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stated that A1-Pratham confessed that they had shot dead  

deceased Kartar Singh.  He does not say that A1-Pratham  

told him that A2-Pancho had fired at deceased Kartar Singh.  

The  incident  is  stated  to  have  occurred  in  the  night  

intervening  7/2/1999  and  8/2/1999.   About  five  months  

later, on 31/7/1999, A1-Pratham is stated to have made a  

confession.  This delay creates a doubt about its credibility.  

Besides, in his evidence PW-4 Nathi Singh has stated that  

his village is about 35 to 40 k.m. from the village of A1-

Pratham and none of his relatives stay in that village.  He  

has stated that he knew A1-Pratham; that he had come to  

his village at about 7.30 to 8.00 a.m. and stayed with him  

for 2.00 to 2.30 hours.  It does not stand to reason that A1-

Pratham  would  go  voluntarily  to  PW-4  Nathi  Singh,  who  

stayed in another village which is about 35 to 40 k.m. away  

from his village and make a confessional statement to him.  

The prosecution evidence does not indicate that A1-Pratham  

and PW-4 Nathi  Singh knew each other intimately.  It  is,  

therefore, difficult to accept the prosecution case that A1-

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Pratham made any extra-judicial confession to PW-4 Nathi  

Singh.  It may be stated here that in his statement recorded  

under Section 313 of the Code, A1-Pratham has denied that  

he made any such statement.  This retraction further makes  

a dent in the alleged extra-judicial confession.   

12. A2-Pancho was arrested on 16/8/1999 near Dabchick  

Modale.  According to the prosecution, his search resulted in  

recovery of a country made pistol (Ex-P/12) of .315 bore.  

The  recovery  of  country  made  pistol  is  made  more  than  

about six months after the date of incident.  It is true that  

the report of FSL (Ex-PT) states that the country made pistol  

marked  W/1  was  test  fired  and  that  bullet  marked  BC/1  

taken out  from the body of deceased Kartar Singh had been  

fired from the said country made pistol.   The report  also  

states that the holes on the clothes of deceased Kartar Singh  

which were sent for examination, had been caused by bullet  

projectiles.  We are, however, of the opinion that, on the  

basis of this report, it is difficult to come to a conclusion that  

A2-Pancho was responsible for the firearm injury caused to  

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deceased Kartar  Singh.  The prosecution has not  led any  

evidence  to  show as  to  in  whose custody this  pistol  was  

during the period of six months after the incident.  In his  

statement  recorded  under  Section  313  of  the  Code,  A2-

Pancho has denied that any such recovery was made from  

him.  Even assuming that the recovery is proved, we are  

unable to hold in the absence of any other cogent evidence  

that it is sufficient to establish that A2-Pancho caused the  

fatal firearm injury to deceased Kartar Singh with the said  

pistol.   

13. Apart  from  the  pistol  which  is  stated  to  have  been  

recovered  from A2-Pancho,  the  prosecution  has  relied  on  

certain  other  discoveries  made  at  the  instance  of  the  

accused.  On 1/8/1999, pursuant to the statement made by  

A1-Pratham, one bumper, one patli and one seat cover are  

stated to have been discovered.  PW-15 Samunder Singh,  

brother of the deceased identified the said articles to be that  

of their tractor.  On 16/8/1999 at the instance of A1-Pancho,  

three pieces of ropes along with an iron pipe are stated to  

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have been discovered.   PW-15 Samunder Singh identified  

them as parts of their tractor.  These discoveries are made  

five  months  after  the  incident  and  significantly,  PW-15  

Samunder  Singh,  who  is  the  brother  of  the  deceased,  is  

stated to be present when the discoveries were effected and  

all articles are identified by him.  Pertinently, he has signed  

the discovery statements of all the accused.  Articles which  

are stated to have been discovered are easily available in  

the market.  There is nothing special about them.  Belated  

discovery  of  these  articles  raises  a  question  about  their  

intrinsic evidentiary value.  Besides, if as contended by the  

prosecution, the accused wanted to sell parts of the tractor,  

it is difficult to believe that they would preserve them till  

1/8/1999.   The  evidence  relating  to  discovery  of  these  

articles must, therefore, be rejected.  

14. As against A2-Pancho, the prosecution is relying mainly  

on the extra-judicial confessional statement of A1-Pratham.  

The question which needs to be considered is what is the  

evidentiary value of a retracted confession of a co-accused?  

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15. The  law  on  this  point  is  well  settled  by  catena  of  

judgments of this court.  We may, however, refer to only  

two judgments to which our attention is drawn by Mr. Lalit,  

learned senior counsel.  In Kashmira Singh  v.  The State  

of Madhya Pradesh,2 referring to the judgment of the Privy  

Council in Bhuboni Sahu v. The King,3 and observations of  

Sir  Lawrence   Jenkins  in  Emperor   v.   Lalit  Mohan  

Chukerbutty,4 this  court  observed  that  proper  way  to  

approach  a  case  involving  confession  of  a  co-accused  is,  

first, to marshal the evidence against the accused excluding  

the  confession  altogether  from  consideration  and  see  

whether, if it is believed, a conviction could safely be based  

on  it.   If  it  is  capable  of  belief  independently  of  the  

confession, then it is not necessary to call the confession in  

aid.  This court further noted that cases may arise where the  

judge is  not  prepared to  act  on the other  evidence as it  

stands  even  though,  if  believed,  it  would  be  sufficient  to  

sustain a conviction.  In such an event, the judge may call in  

2 AIR 1952 SC 159 3 76 Indian Appeals 147 4 38 Cal. 559

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aid the confession and use it to lend assurance to the other  

evidence and thus fortify himself in believing what without  

the  aid  of  the  confession,  he  would  not  be  prepared  to  

accept.   

16. In  Haricharan  Kurmi   v.   State  Bihar,5 the  

Constitution Bench of this court was again considering the  

same question.  The Constitution Bench referred to Section  

3 of the Evidence Act and observed that confession of a co-

accused is not evidence within the meaning of Section 3 of  

the Evidence Act.   It  is  neither  oral  statement  which the  

court permits or requires to be made before it as per Section  

3(1) of the Evidence Act nor does it fall in the category of  

evidence  referred  to  in  Section  3(2)  of  the  Evidence  Act  

which covers all documents produced for the inspection of  

the court.  This court observed that even then Section 30  

provides that a confession may be taken into consideration  

not only against its maker, but also against a co-accused.  

Thus,  though  such  a  confession  may  not  be  evidence  as  

5 AIR 1964 SC 1184

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strictly defined by Section 3 of  the Evidence Act,  it  is an  

element  which  may  be  taken  into  consideration  by  the  

criminal  court  and in  that  sense,  it  may be  described as  

evidence  in  a  non-technical  way.   This  court  further  

observed that Section 30 merely enables the court to take  

the confession  into  account.   It  is,  not  obligatory  on the  

court  to  take  the  confession  into  account.   This  court  

reiterated that a confession cannot be treated as substantive  

evidence against a co-accused.  Where the prosecution relies  

upon  the  confession  of  one  accused  against  another,  the  

proper approach is to consider the other evidence against  

such  an  accused  and  if  the  said  evidence  appears  to  be  

satisfactory and the court is inclined to hold that the said  

evidence may sustain the charge framed against the said  

accused, the court turns to the confession with a view to  

assuring itself that the conclusion which it is inclined to draw  

from the other evidence is right.  This Court clarified that  

though confession may be regarded as evidence in generic  

sense  because  of  the  provisions  of  Section  30  of  the  

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Evidence  Act,  the fact  remains  that  it  is  not  evidence as  

defined  in  Section  3  of  the  Evidence  Act.   Therefore,  in  

dealing with a case against  an accused,  the court  cannot  

start with the confession of a co-accused; it must begin with  

other evidence adduced by the prosecution and after it has  

formed its opinion with regard to the quality and effect of  

the  said  evidence,  then  it  is  permissible  to  turn  to  the  

confession in order to receive assurance to the conclusion of  

guilt which the judicial mind is about to reach on the said  

other evidence.  

17. Applying the above principles to the case on hand, we  

find  that  so  far  as  A2-Pancho  is  concerned,  except  the  

evidence of alleged belated discovery of certain articles at  

his instance, which we have already found to be doubtful,  

there is no other evidence on record to connect him to the  

offence in question.   When there is  no other  evidence of  

sterling quality on record establishing his involvement,  he  

cannot be convicted on the basis of the alleged extra-judicial  

confession  of  the  co-accused  A1-Pratham,  which  in  our  

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opinion,  is  also  not  credible.   Once  A1-Pratham’s  extra-

judicial  confession  is  obliterated  and  kept  out  of  

consideration,  his  conviction  also  cannot  be  sustained  

because we have come to the conclusion that the alleged  

discovery of articles at his instance cannot be relied upon.  

There is thus, no credible evidence to persuade us to uphold  

the conviction of A1-Pratham.   

18. In  view  of  the  above,  we  set  aside  the  impugned  

judgment  and order.   A1-Pratham and A2-Pancho are  on  

bail.  Their bail bonds stand discharged.   

19. Appeals are disposed of in the aforestated terms.  

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, OCTOBER 20, 2011.

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