This is an analysis of case of Sarwan Singh vs The State of Punjab where the appellants appealed to supreme court by special leave to appeal and got acquitted from charge of murder due to the failure of double test of reliability of the approver and mishandling of confession of one of the accused

Case Analysis:

Sarwan Singh vs The State of Punjab

1957 AIR 637, 1957 SCR 953
Bench:
Gajendragadkar, P.B

Facts of the case
Gurdev Singh, the victim of the assault was the brother of accused named Harbans Singh. Their father abandoned them and was no longer alive. As alleged, Harbans Singh was a vandal. Gurdev Singh tried to improve his brother Harbans Singh because of which he was aggravated and his annoyance made him conspire to murder his brother Gurdev Singh. Harbans Singh contacted his friends.

Sarwan Singh and Gurdial Singh who had a resentment towards Gurdev Singh already as there was a rumor that he was romantically involved with his sister. They further involved Banta Singh into the conspiracy and planned to murder Gurdev Singh. Sarwan Singh, one of the accused arranged a pistol from Rakha who himself was requested to take part in the act but declined to partake.

The day of the commission of the offence it was alleged that Harbans Singh lured Gurdev Singh to the hotspot where the three accused Sarwan Singh, Gurdial Singh and Banta Singh were hiding under the bushes. According to the claim of prosecution, Harbans Singh was armed with a kirpan, Gurdial Singh with a lathi, the approver Banta Singh with a toki and Sarwan Singh used a kirpan to brutally murder Gurdev Singh.

Harbans Singh on returning to the village created a hue and went with villagers to the same spot where the dead body of Gurdev Singh was found severely wounded. Harbans Singh wrongly accused four others of village Pona and reported the incident to police and so the investigation began.

Prosecution argument
The prosecution alleged that these four men co-conspired to murder Gurdev Singh and stated facts of the case to uphold their story. The prosecution also pointed out that regards to the investigation by police, objects used for the commission of the offence were obtained and Sarwan Singh made a confession Infront of the magistrate on November 30. On December 2, Banta Singh was made an approver in the case supporting that the alleged accused were guilty of murdering the victim Gurdev Singh.

Tracing the case
The sessions court pardoned Banta Singh the "approver" and made him witness for the prosecution. On account of the evidence stated by the prosecution and the approver, confession of Sarwan Singh; the session court held the allegations were proven beyond reasonable doubt and convicted Gurdial Singh, Harbans Singh and Sarwan Singh for the offence of murder.

On appeal to the high court, the evidence of approver against Gurdial Singh was found to be very inconsistent and unreliable and his conviction was set aside but the conviction of Sarwan Singh and Harbans Singh was confirmed. The convicted appealed to the supreme court by special leave to appeal under article 136 of the Indian constitution.

Arguments presented in Supreme Court
Appellant Harban's Singh argument
The appellant argued that the judgement of high court did not address weather approver was a reliable witness or not. The fact that he participated in the commission of the act casted serious apprehensions on his reliance and the evidence wasn't corroborated by other independent evidences.

His statements in trial court and on cross examination have been inconsistent and the high court have failed to scrutinize the approver's evidence strictly and judgement of learned judges is vitiated by serious infirmity. The interest of Harbans Singh in the purchase of pistol may cast doubt but pistol was not used in the commission of crime and doubt cannot replace proof thus, the evidence of approver should be discarded and if the evidence is discarded the case against Harbans Singh fails.

Appellant Sarwan Singh's Argument
Aside the approver's unreliability and inconsistency with the prosecution story about the injuries; the appellant casted aspersions on the voluntary nature of the voluntary confession made which the courts below completely ignored. The appellant pointed towards that Sarwan Singh was arrested and kept in police custody without justification. During confession, the police sub-inspector was standing outside the office creating mental anguish and the magistrate failed to inquire into the injuries on the person of Sarwan Singh.

Verdict:
It was found that courts below failed to examine whether the approver was a reliable witness or not and the high court assumed the confession to be voluntary. The court found the approver to not be a reliable witness as the approver's evidence was inconsistent with the evidence presented in the court.

The prosecution story failed to be consistent with the material facts of the story of the approver. Moreover, the magistrate failed to comply with the procedure and failed to ensure weather the confession was true and voluntary. On these bases the appeal was allowed and Harbans Singh and Sarwan Singh were acquitted of the charges.

"the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence"