Full Judgment Text
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CASE NO.:
Appeal (crl.) 1635 of 2005
PETITIONER:
Babubhai Udesinh Parmar
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The appellant herein was a labourer. He is said to have committed a
series of offences involving heinous crimes. He is involved also in a case of
rape and murder of a minor girl Savita. She was sister of Shankar Bhursinh
(complainant). He lodged a First Information Report on 1.07.1998 inter alia
stating that he with a view to earn his livelihood came with his family to
Karamsad town. He was staying in a shed opposite to Tirupati Petrol Pump.
He was sleeping in that shed. He woke up at about 2 a.m. for answering the
call of nature. At that time her sister was sleeping along with other family
members. When he woke up again, he did not find Savita. It was raining on
that night. Searches were made for her. On the next day morning, her dead
body was found lying in the surrounding field belonging to Malabhai and
Kanbhai. Her neck was tied with a frock which was worn by her. She was
found to be dead. The blood was found to have been oozing out from her
private part. The knicker worn by her was also missing. He informed the
police. The appellant was arrested by the investigating officer Mr. R.G.
Patel on 12.08.2002. He purported to have made a confession about
committing rape and murdering Savita. He also allegedly showed the place
of incidence to the investigating officer. He prepared panchnama of the
scene of offence and recorded statement of the concerned witnesses. He
then sent the frock worn by the deceased to Forensic Science Laboratory.
The appellant purported to have made a confessional statement before PW-2
Ambalal.
Principally relying on or on the basis of said judicial confession made
by the appellant, he was found guilty of commission of offence. The learned
Sessions Judge took into consideration the fact that he has been found guilty
of commission of similar offences as also other offences and, thus, imposed
death penalty on him. The High Court affirmed the said judgment of
conviction and sentence by its judgment dated 2.03.2005.
The High Court while recording that the confession was found not
only to be true but having been voluntarily made, opined that the same could
be relied upon. At the same time, the High Court proceeded on the basis that
the accused was free to make retraction of his confession when his statement
under Section 313 of the Code of Criminal Procedure was recorded. The
High Court furthermore noticed that oath should not have been administered
to the accused but opined that the same is not of much significance but
proceeded on the basis that the decisions of the Apex Court have often said
that the court cannot solely rely on the retracted confession and make it a
foundation for convicting the accused. But, while purporting to keep the
confessional statement of the appellant aside, it examined the purported
circumstances used against him. We are afraid, nothing has been brought on
record to show existence of any circumstance which would lead to the
conclusion that the appellant alone is guilty of commission of the offence.
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Rape and murder of Savita is not in dispute before us. It is also not
disputed before us as that apart from the purported judicial confession there
is no other material which can be said to be sufficient to establish the guilt of
the appellant. The Chief Judicial Magistrate, Nadiad recorded the
confession on the basis of an application made by the said Mr. R.G. Patil.
An application was also filed to record the confession of the appellant in
another case bearing No. I.C.R. No. 123 of 1997.
The confession was recorded on 7.09.2000. He was in judicial
custody for a period of 16 days. His statement is as under:
"The incident is of two years old I do not
remember the exact date. On that day I was at my
house and at night say around 12.00 I went to the
field which is at opp Karamsad Petrol Pump. I
don’t know whose field is this. On being reached
to the field I saw that there was one shed with
a______, and under that shed one girl was
sleeping. I have lifted her. I don’t know the age of
the girl, as soon as she wanted to shout I have
closed her mouth, and behind that field one cannel
is there and I have taken the girl in that cannel,
there was a field near the cannel, and in that field
one tree namely baval was there and one floor was
constructed thereon. I have taken the girl to that
field, I have removed the cloth of the girl in the
field, the mouth was shunted and have raped her,
and thereafter I have given the noose on the neck
with her frock as a result of which the girl was
died. And I have taken the girl to the corner of the
field and left the field after keeping the girl in the
corner of the field. I have not told anybody about
the incident, this is my confession regarding the
offence."
It preceded by routine questions. It was accompanied by a certificate
in usual form.
The learned Magistrate examined himself as PW-2. In his deposition
he reproduced the statements of the appellant. In his cross-examination, he
accepted that the confession started at about 11.15 a.m. and was completed
at about 11.30 a.m. He did not remember that on the same day he recorded
another confession of the appellant in relation to Session Case No. 298 of
2000. He, however, accepted that he had done so when it was brought to his
notice. Recording of that confession was completed at 11.45 a.m. Till then
no legal aid was provided to him.
He did not examine the body of the accused. He asked only the
routine question as to whether he was ill-treated by the police. He accepted
that the accused was produced before him under police protection and was
also taken back under the police protection. He stated:
"\005two things is to be noted in the confession
statement regarding voluntarily and reality. I
cannot say that the accused has shown the reality
or not\005"
Two inconsistencies appeared in the prosecution case vis-‘-vis the
said purported confession. The evidence of the brother of the deceased
categorically shows that the offence was committed in between 2 a.m. and 4
a.m. The purported confession shows that the offence was committed
around 12 O’Clock in the night. The prosecution case proved that not only
the complainant but also other family members were sleeping in the same
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shed. The purport of the confessions goes to show that the deceased was
sleeping alone in the shed.
We do not appreciate as to why oath had to be administered to the
accused while recording confession. Taking of a statement of an accused on
oath is prohibited. It may or may not be of much significance. But, it may
assume significance when we examine that a purported deposition of
accused was taken on 10.03.2003 wherein also his evidence on oath was
recorded in the following terms:
"I hereby state on oath that:-
My Name : Babubhai
My father’s name : Udesing Parmar
My age about : 27 years
My occupation : Labour Work
Village of Residence: Native Umrav Tadia
Pura, at present Karamsad
Question: Have you received copy of documents
of police investigation?
Answer: Yes
Question: Is the charge sheet Exh. 4 read over to
you, Do you admit the offence? Or you want to
proceed further the judicial proceedings?
Answer: I do not admit the offence.
Question: Have you engaged private advocate
for your self defence or you want to engage
advocate at the cost of Government?
Answer: I have engaged free advocate."
Ms. Hemantika Wahi, learned counsel appearing on behalf of the
State, would submit that the provisions of Section 164 of the Code of
Criminal Procedure contains a salutary principle and only in the event the
confession is found to have been voluntarily rendered, the same can be the
foundation for recording a judgment of conviction.
A judicial confession undoubtedly is admissible in evidence. It is a
relevant fact. A judgment of conviction can also be based on a confession if
it is found to be truthful, deliberate and voluntary and if clearly proved. The
voluntary nature of the confession depends upon whether there was any
threat, inducement or promise and its truth is judged on the basis of the
entire prosecution case. [See Bharat v. State of U.P., (1971) 3 SCC 950 and
Subramania Goundan v. The State of Madras, (1958) SCR 429]
In State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [(2005)
11 SCC 600], this Court observed:
"Confessions are considered highly reliable
because no rational person would make admission
against his interest unless prompted by his
conscience to tell the truth. "Deliberate and
voluntary confessions of guilt, if clearly proved are
among the most effectual proofs in law". (vide
Taylor’s Treatise on the Law of Evidence Vol. I).
However, before acting upon a confession the
court must be satisfied that it was freely and
voluntarily made. A confession by hope or promise
of advantage, reward or immunity or by force or
by fear induced by violence or threats of violence
cannot constitute evidence against the maker of
confession. The confession should have been made
with full knowledge of the nature and
consequences of the confession. If any reasonable
doubt is entertained by the court that these
ingredients are not satisfied, the court should
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eschew the confession from consideration. So also
the authority recording the confession - be it a
Magistrate or some other statutory functionary at
the pre-trial stage, must address himself to the
issue whether the accused has come forward to
make the confession in an atmosphere free from
fear, duress or hope of some advantage or reward
induced by the persons in authority. Recognizing
the stark reality of the accused being enveloped in
a state of fear and panic, anxiety and despair while
in police custody, the Indian Evidence Act has
excluded the admissibility of a confession made to
the police officer.
Section 164 of Cr.P.C. is a salutary provision
which lays down certain precautionary rules to be
followed by the Magistrate recording a confession
so as to ensure the voluntariness of the confession
and the accused being placed in a situation free
from threat or influence of the police."
However, it was categorically stated that retracted confession must be
looked upon with greater concern unless the reasons given for having made
it in the first instance are on the face of them false.
Section 164 provides for safeguards for an accused. The provisions
contained therein are required to be strictly complied with. But, it does not
envisage compliance of the statutory provisions in a routine or mechanical
manner.
The court must give sufficient time to an accused to ponder over as to
whether he would make confession or not. The appellant was produced
from judicial custody but he had been in police custody for a period of 16
days. The learned Magistrate should have taken note of the said fact. It
would not be substantial compliance of law. What would serve the purpose
of the provisions contained in Section 164 of the Code of Criminal
Procedure are compliance of spirit of the provisions and not merely the
letters of it. What is necessary to be complied with, is strict compliance of
the provisions of Section 164 of the Code of Criminal Procedure which
would mean compliance of the statutory provisions in letter and spirit. We
do not appreciate the manner in which the confession was recorded. He was
produced at 11.15 a.m. The first confession was recorded in 15 minutes
time which included the questions which were required to be put to the
appellant by the learned Magistrate for arriving at its satisfaction that the
confession was voluntary in nature, truthful and free from threat, coercion or
undue influence. It is a matter of some concern that he started recording the
confession of the appellant in the second case soon thereafter. Both the
cases involved serious offences. They resulted in the extreme penalty. The
learned Magistrate, therefore, should have allowed some more time to the
appellant to make his statement. He should have satisfied himself as regards
the voluntariness and truthfulness of the confession of the appellant.
In Devendra Prasad Tiwari v. State of U.P. [AIR 1978 SC 1544], this
Court opined:
"\005It is also true that before a confessional
statement made under Section 164 of the Code of
Criminal Procedure can be acted upon, it must be
shown to be voluntary and free from police
influence and that the confessional statement made
by the appelant in the instant case cannot be taken
into "account, as it suffers from serious infirmities
in that (1) there is no contemporaneous record to
show that the appellant was actually kept in jail as
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ordered on Sept. 6, 1974 by Shri R.P. Singh,
Judicial Magistrate, Gorakhpur, (2) Shri R.P.
Singh who recorded the so called confessional
statement of the appellant did not question him as
to why he was making the confession and (3) there
is also nothing in the statement of the said
Magistrate to show that he told the appellant that
he would not be remanded to the police lock up
even if he did not confess his guilt\005"
[See also Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC
159]
In Parmananda Pegu v. State of Assam [AIR 2004 SC 4197], this
Court opined:
"The foremost amongst the factors that are sought
to be relied upon by the prosecution is the retracted
confession of the appellant recorded under Section
164 Cr.P.C. The confession has been extracted
supra in verbatim. Before acting on a confession
made before a Judicial Magistrate in terms of
Section 164, the Court must be satisfied first that
the procedural requirements laid down in Sub-
sections (2) to (4) are complied with. These are
salutary safeguards to ensure that the confession is
made voluntarily by the accused after being
apprised of the implications of making such
confession. Looking at the confessional statement
(Ext.8) coupled with the evidence of PW 22, the
then Addl. Chief Judicial Magistrate, Dhemaji, we
have no doubt in our mind that the procedural
requirements have been fulfilled. Inter alia, PW 22
deposed that after cautioning the accused that the
confessional statement, if made, will be used in
evidence against them, he gave three hours time
for reflection during which the accused were kept
in a room attached to the Court in the immediate
presence of an office peon. PW22 further stated
that it appeared to him that the accused made the
statement voluntarily. A memorandum as required
by Sub-section (4) was also recorded. Thus the
first requirement for acting on a confession is
satisfied but that is not the end of the matter. The
Court, called upon to consider the evidence against
the accused, should still see whether there are any
circumstances appearing from the record which
may cast a doubt on the voluntary nature of the
confession. The endeavor of the Court should be to
apply its mind to the question whether the accused
was free from threat, duress or inducement at the
time of making the confession. In doing so, the
Court should bear in mind, the principle
enunciated in Pyare Lal v. State of Rajasthan
[(1963) Suppl.1 SCR 689] that under Section 24 of
the Evidence Act, a stringent rule of proof as to the
existence of threat, duress or inducement should
not be applied and a prima facie opinion based on
evidence and circumstances may be adopted as the
standard laid down. To put it in other words, "on
the evidence and the circumstances in a particular
case it may appear to the Court that there was a
threat, inducement or promise, though the said fact
is not strictly proved."
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17. Having thus reached a finding as to voluntary
nature of a confession, the truth of the confession
should then be tested by the Court. The fact that
the confession has been made voluntarily, free
from threat and inducement, can be regarded as
presumptive evidence of its truth. Still, there may
be circumstances to indicate that the confession
cannot be true wholly or partly in which case it
loses much of its evidentiary value.
18. In order to be assured of the truth of
confession, this Court, in a series of decisions, has
evolved a rule of prudence that the Court should
look to corroboration from other evidence.
However, there need not be corroboration in
respect of each and every material particular.
Broadly, there should be corroborated so that the
confession taken as a whole fits into the facts
proved by other evidence. In substance, the Court
should have assurance from all angles that the
retracted confession was, in fact, voluntary and it
must have been true\005"
We must also notice that there was no direction to provide free legal
aid to the appellant. He had no opportunity to have independent advice. We
may, however, hasten to add that it does not mean that such legal assistance
must be provided in each and every case but in a case of this nature where
the appellant is said to have confessed in a large number of cases at the same
time, the State could not have denied legal aid to him for a period of three
years.
There is another aspect of the matter which must be taken into
consideration. The same being the manner in which the case has been dealt
with by the courts below.
The judgment of the learned Trial Judge gives an impression that he
had proceeded on the basis that the appellant is guilty of commission of
crime in large number of crimes. The High Court although taken note of the
propositions of law, while pointing out the corroborative pieces of evidence,
repeated only the evidences brought on records which proved the
commission of offence. The purported corroborative evidence brought on
record by the prosecution and as noticed by the High Court did not indicate
that the appellant was guilty of commission of the offence. The
circumstances were not such which formed links in the chain and point out
only to the guilt to the accused and accused alone.
We, therefore, with respect, are constrained to record disagreement
with the ultimate findings of the learned Sessions Judge as also the High
Court. We, however, may observe that we have only considered the merit of
the present appeal. Each case against the appellant must be judged on the
basis of the legal evidence brought on records. Our observations, we are
sure, would not influence the learned Judges dealing with other cases
involving the appellant and pending before them.
The judgment of conviction and sentence is set aside and the appeal is
allowed.