By High Court
Case Details
Crl.A. 67/2012 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO AND HON’BLE MR. JUSTICE P. K. SAIKIA This appeal is directed against the judgment and order dated 15-02-2013, passed by the learned Sessions Judge, Sivasagar in Sessions Case No 151 (S-S) 2004 conv icting appellants of offence under Section 396/397 IPC and sentencing them to imprisonment for life and to pay a fine of Rs. 5,000/- each in default, to R.I f or another six months for offence u/s 396 IPC and sentencing them to R.I. for 7 years for offence under Section 397 IPC. Being dissatisfied and aggrieved by the aforesaid judgment and order, th 2. e appellants namely Pulin Phukan, Prabin Bora, Paban Bora, Bipul Lahan and Dhan Bora (hereinafter referred to as (cid:28)accused persons (cid:29)) have preferred this appeal c iting several infirmities in the judgment and order impugned. 3. The facts which have emerged during trial and which are necessary for di sposal of the present appeal are that on 18-11-1993 at about 6:45 p.m., a group 5/6 unknown miscreants in order to commit dacoity entered in to the house of one Sri Binod Agarwalla of Simaluguri Village. The said miscreants were armed with khukri, dagger and dao etc., and they had their faces covered with cloths. While entering into the house of said Agarwalla, one Bhuramal Agarwalla, the father o f the informant Sri Binod Agarwalla tried to prevent the miscreants from enterin g the house. 4. Such acts on the part of Bhuramal Agarwalla angered the miscreants for w hich they attacked him with dao etc. inflicting wounds on his person. Having bee n so assaulted, Bhuramal Agarwalla breathed his last sometime thereafter. Hearin g hue and cry, the mother of the informant came out to protect her husband where upon the miscreants had also attacked her too inflicting wounds on her person an d fled from the scene. 5. Informant Sri Binod Agarwalla (PW 1) lodged an FIR with the Officer-in-C harge of Shimaluguri Police Station same day at about 8.00 p.m. On the receipt o f the FIR, O/C, Simaluguri Police Station registered a case, vide Simaluguri P.S Case No. 138/93 u/s 395/396/397 IPC and he himself took up the investigation. D uring the course of investigation, the I.O visited the place of occurrence and c onducted inquest on the dead body. 6. He also sent the body of the deceased to hospital for post mortem exami nation, also sent other victims for treatment, examined the witnesses, did other needful including the arrest of the miscreants and on conclusion of the investi gation, he submitted charge sheet under Section 395/396/397 IPC against the accu sed persons and then forwarded them to the Court to stand trial. 7. The learned Magistrate before whom charge-sheet was so laid committed th e case to the Court of Sessions since the offence is exclusively triable by the Court of Sessions. On the receipt of the case on commitment and on hearing the p arties, learned Sessions Judge, framed charges u/s 396/397 IPC against accused p ersons and charges so framed, on being read over and explained to the accused p ersons, they pleaded not guilty and claimed to be tried. 8. During trial, the prosecution side examined as many as 22 witnesses inc luding the informant, Medical Officer and the I.O. The statements of the accused persons under Section 313 CrPC were recorded. Their plea was of total denial. H owever, they declined to adduce any evidence of their own. On the conclusion of the trial and on hearing the arguments advanced by the learned counsel for the p arties, the learned Session Judge convicted the accused persons of offence under Section 396/397 IPC and sentenced them to punishment as aforesaid. It is that j udgment which has been assailed in the present appeal on grounds more than one. 9. Opening up argument on behalf of the appellants, learned counsel Mr. Pa llav Katoki, submits that this case is basically based on confessional statement made by the accused persons. However, such confessional statements are profound ly defective and as such, no reliance can be placed on such confessions in recor ding a verdict of guilt against the accused persons. 10. In that context, it has been contended that a confessional statement can be relied on only when it is found to be voluntary and truthful. A confession, made by the accused person, cannot be said to be voluntary unless it is shown th at the learned Magistrate who recorded confessional statement, had strictly foll owed the directions, rendered in Section 164(2) to 164 (4) Cr.P.C. as well as ot her directions, rendered by High Courts and Supreme Court from time to time. 11. Unfortunately, in the case under consideration, the learned Magistrate had honored the directions rendered in Section 164 (2) to 164 (4) CrPC as well a s other directions rendered by High Court and Supreme Court from time to time no t in observance but in violation instead. In that connection, it has been pointe d out that learned Magistrate had given hardly one hour time to the accused pers ons to ponder over the matter whether or not make confession. It has also been contended that all the confessional statements are tota 12. lly identical in language, stuff and contents which only shows that the learned Magistrate did not record the confession as far as practicable in the words of c onfessing accused persons which also raises a serious doubt about the truthfulne ss of the contents of the confessional statements, aforementioned. 13. The confessional statements have been questioned also on the ground that the Magistrate before recording the confessional statements did not take into a ccount the period during which they were in police custody before being brought to the Magistrate to have their confessional statements, recorded. These are ser ious violation of statutory requirements of law which make the confessional stat ements in questions unsustainable in law. 14. He therefore, urges this Court to set aside the judgment under challenge and to acquit the accused persons of offence, of which they are held guilty, co nvicted of and punished as aforesaid. In support of his submissions, learned cou nsel for the appellant has referred us to following decisions:-- (a).Sarwan Singh Rattan Singh-v-State of Punjab, reported in AIR 1957 SC 637 Alphus Munda and Others -vs- State of Assam, reported in 1996 3 GLT 568
Legal Reasoning
(cid:28) 64 The following principles emerge with regard to Section 164 CrPC : (i) the provisions of Section 164 CrPC must be complied with not only in form, b ut in essence (ii) before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that ther e is no scope for doubt of any sort of extraneous influence proceeding from a so urce interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial (iv) The maker should be granted sufficient time for reflection (v) He should be assured of protection from any sort of apprehended torture or p ressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when su ch a confession is retracted, the conviction cannot be based on such retracted j udicial confession (vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of cre dence. (viii) During the time of reflection, the accused should be completely out of po lice influence. The judicial officer, who is entrusted with the duty of recordin g confession, must apply his judicial mind to ascertain and satisfy his conscien ce that the statement of the accused is not on account of any extraneous influen ce on him (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence (xi) Usually the court requires some corroboration from the confessional stateme nt before convicting the accused persons on such a statement. (cid:29) 31. In Sarwan Singh Rattan Singh (supra), Supreme Court clearly held that a confessing accused generally needs to be given 24 hours time to have proper refl ections on the warnings given to him so that such an accused person does not mak e any confession being under influence of any kind from any authority whatsoever . The relevant part is reproduced below: ----- (cid:28) The whole object of questioning to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any indu cement, threat or promise having reference to the charge against the accused per son as mentioned in S. 24 of the Indian Evidence Act. There can be no doubt that, when an accused person is produced before the Magist rate by the investigating officer, it is utmost importance that the mind of the accused person should be completely freed from any possible influence of the pol ice and the effective way of securing such freedom from fear to the accused pers on is to send him in jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused per son in any given case. However, speaking generally, it would we think, be reasonable to insist upon giv ing an accused person at least 24 hours time to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has bee n persuaded of coerced to make a confession, even longer period may have to be g iven to him before his statement is recorded. In our opinion, in the circumstanc es of this case it is impossible to accept the view that enough time was given t o the accused to think over the matter. (cid:29) 32. The decision rendered in In Sarwan Singh Rattan Singh (supra), has again been reiterated in the case of Chinnah Gowda v. State of Mysore reported in (196 3) 2 SCR 517. The relevant part is reproduced below: --- (cid:28)It has been pointed out by this Court in Swarwan Singh v. State of Punjab that when an accused person is produced by the investigating officer before the Magis trate for recording his confession, it is of the utmost importance that his mind should be completely free from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should m ake a confession at all. (cid:29) 33. The necessity of giving reasonable time to a confessing accused to think over whether or not to make confession has also been considered in State of Mah arastra Vs. Damu reported in (2000) 6 SCC 269. Considering the matter above, Ho n’ble Supreme Court held as follows:- (cid:28)We have considered the above reasons and the arguments addressed for an d against them. We have realized that those reasons are ex facia fragile. Even o therwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from po lice custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. (cid:29) 34. In Babubhai Udesinh Parmar V. State of Gujarat reported in (2006) 12 SCC 2 68 too Hon’ble Supreme Court has again reiterated the necessity of giving suffic ient time to the confessing accused to ponder over whether or not to make confes sion. In the aforesaid decision, Hon’ble Supreme Court has also asked the Magist rate to take note of the period for which the accused was kept in police custody before being brought to the Magistrate to have his confession recorded. The re levant part is reproduced below: ---- (cid:28)15. Section 164 provides for safeguards for an accused. The provisions containe d therein are required to be strictly complied with. But, it does not envisage c ompliance with the statutory provisions in a routine or mechanical manner. 16. The court must give sufficient time to an accused to ponder over as to wheth er he would make confession or not. The appellant was produced from judicial cus tody but he had been in police custody for a period of 16 days. The learned Magi strate should have taken note of the said fact. It would not be substantial comp liance of law. What would serve the purpose of the provisions contained in Secti on 164 of the Code of Criminal Procedure are compliance with spirit of the provi sions and not merely the letters of it. What is necessary to be complied with th e provisions of compliance with the statutory provisions in letter and spirit. W e do not appreciate the manner in which the confession was recorded. He was prod uced at 11:15 a.m. The first confession was recorded in 15 minutes’ time which i ncluded the questions which were required to be put to the appellant by the lear ned Magistrate for arriving at its satisfaction that the confession was voluntar y in nature, truthful and free from threat, coercion of undue influence. It is a matter of some concern that he started recording the confession of the appellan t 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 ha ve satisfied himself as regards the voluntariness and truthfulness of the confes sion of the appellant. 35. Coming back to our case, we have found that 5 (five) accused persons nam ely, 1)Pulin Phukan, 2)Pabin Bora, 3)Paban Bora, 4)Bipul Lahan and 5)Dhan Dwarah were produced before the Magistrate at about 1:00 p.m. on 22.11.1993. The state ment of five accused persons were recorded simultaneously and recording of state ment was over by 2:30 p.m. The Ext-7to Ext.-11 makes such position more than cle ar. 36. The above revelations clearly show that the confessing accused persons w ere given less than one hour to think over as to whether they would make confess ion or not. Thus, we are constrained to hold that accused persons were not given enough time to think over the warnings, rendered to them and to take decisions as to whether they would make confession or not. 37. We have already found that law enjoins a duty upon the Magistrate to inf orm a confessing accused that he is not bound to make confession and even if he does not make confession, he would not be sent to police custody. Law also cast a duty upon the Magistrate to enquire as to why the accused desires to make a co nfession implicating him with a crime. Unfortunately, here, the Magistrate (PW 12) did not inform the confessin 38. g accused persons that they would not be sent to police custody even if they ref used to make confession. The learned Magistrate also did not enquire as to why t he accused persons desired to confess their guilt. Such failures on the part of the Magistrate only show that the Magistrate did not discharge his duty as requi red under the law. 39. In that connection one may peruse the decisions rendered by Apex Court i n the case of Devendra Prasad Tiwari Vs. State of U.P. reported in (1978) 4 SC C 474. The relevant part is reproduced below:-- (cid:28)It is also true that before a confessional statement made under Section 164 CrP C can be acted upon, it must be shown to be voluntary and free from police influ ence and that the confessional statement made by the appellant in the instant ca se 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 k ept in jail as ordered on 6-9-1974 by Shri R.P. Singh, Judicial Magistrate, Gora khpur, (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 h e told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt. (cid:29) 40. In Babubhai Udesinh Parmar (supra) It has been held that the Magistrat e before whom a accused is produced to have his confession recorded must take in to account the period during which he was in police custody before being brought to the Magistrate to have his statement recorded. Longer the period in police c ustody, longer the period for reflection. In our instant case, record reveals th at the accused persons were arrested by police on 20.11.1993. 41. But they were produced before the Magistrate to have their confession re corded on 22.11.1993 at about 1:00 p.m. Being so, they were in police custody fo r about 2 to 3 days before being brought to the Magistrate to have their confess ions recorded. In such a scenario, learned Magistrate ought to have given much m ore time to the accused persons than the time he had given them in the case unde r consideration. 42. In view of our forgoing discussion, we are of the opinion that accused p ersons were not given sufficient time for reflection. We have also found that le arned Magistrtae had did not follow other statutory directions, rendered in sect ion 164 CrPC . These very clearly demonstrate that the confessions in question a re not voluntary, one of the prime conditions for acting upon the judicial confe ssion. On this count alone, the confessions in question are liable to be rejecte d. The truthfulness of the contents of the confessions aforementioned has b 43. een questioned also on the ground that the contents, stuff and substance of thos e confessions are strikingly similar. Such astonishing similarity of the confess ions aforesaid in all aspects is the proof of fact that the confessions were not recorded in the words of the accused persons. This is also testimony to the fac t that confessional statements are not truthful. 44. In that connection, our attention has been drawn to the decisions render ed by this Court in the Alphus Munda(Supra). The relevant part of the aforesaid judgment is reproduced below:- (cid:28)the first question that crops up for consideration is the most artificial, unna tural phenomenon of the recording of confessional statement of the four accused just within a day of their arrest came out at the same moment and place expressi ng their desire to make a confessional statement, it is contrary to human nature . Assuming for the sake of argument that all of them, desire to make a confessio nal statement at the same moment yet, is it possible that the confessional state ments made by them would be comparable words by words and sentence by sentence w ithout any change in the sequences of events, as narrated. It is not safe. The c onfessional statement Ext-12 made by accused Taru Munda and Ext-30 made by Alfas munda is virtually ad-verbatim copy of each other. Such a mechanical reproducti on is almost impossible when two persons narrated the same incident in their own way. From beginning to end, the submissions of those two persons remained the s ame. The learned trial Judge has failed to appreciate the underlying inherent in firmity in such statements. It is not the question of English rendering of their statements which are identical in nature, the infirmity lies in identical narra tion words by words and sentence by sentence, it is this similarly between the s tatements which rendered them artificial. This inherent infirmity has escaped no tice of the trial Court. (cid:28) 45. We have found that tone tenure and contents of aforementioned confessions ar e amazingly similar. This coupled with the fact that the entire process of recor ding of confessions of as many as five accused persons were completed within a s pan of 1(one) hour only serve to show that the confessions were not recorded in the words of accused persons. 46. We may note here that since confessions were not recorded in the words of ac cused persons, one needs to hold that those confessions are not truthful either. In view of our foregoing discussions, we are constrained to hold that the confe ssions are neither truthful nor voluntarily made by accused persons. Therefore, we have no other way but to reject such confessions. 47. Since, the entire prosecution case is founded on the confessional statem ents of the accused persons and since such confessions are found to be not relia ble, we are of the opinion that the prosecution could not make out the charge u/ s 396/397 IPC against the accused persons and therefore, learned trial Court oug ht to have acquitted the accused persons of offences aforementioned. 48. h is impugned in this appeal is accordingly set aside. 49. onnection with any other case. Return the LCR. 50. 51. Registry is directed to circulate a copy of this judgment among the judi cial Officers for their information and necessary action. Consequently, appeal is allowed and the judgment of the trial Court whic The appellants are ordered to be released forthwith if not required in c
Arguments
(b). Kechar Singh -vs- Delhi Administration, reported in 1988 3 SCC 609 (c) Rabindra Kumar Pal Alias Dara Singh-vs- Repbulic of India, reported in (2011 ) 2 SCC 490 (d). : Ms. S. Jahan, learned Addl. P.P. however, submits that the judgment unde 15. r consideration was rendered on the basis of materials on record having regard t o the laws which hold the field in question. Such a judgment, therefore, invites no interference from this Court of appeal and as such, she urges this Court to dismiss the appeal on affirming the judgment of the trial Court. 16. We have considered the rivals submissions having regard to the evidence on record as well as the judgment under challenge. However, before we proceed fu rther, I find it necessary to have a look the evidence of Doctor who conducted a utopsy on the dead body and the victim who reportedly sustained wounds on her pe rsons in the incident under consideration. The Dr. who conducted autopsy on the dead body was one Dr. Anil Sarma who was examined as PW-13. 17. According to him (PW-13), on 19-11-1993, he was posted at Sivasagar Civi l Hospital. On that day, he conducted autopsy on the body of one Bharamal Agarwa lla and found the following injuries:- (cid:28) 1. One stab wound size 1 (cid:29)x … (cid:28) x thorasic cavity in the left fourth in tercostals space 3 (cid:29) lateral to mid line. Wounds margins are well defined. 2. Stab wound size 2 (cid:29) x … (cid:28) x abdominal over front of the abdominal in the left side axillery line. Wounds margins are sharp and well defined. 3. 4. 5. Stab wound size 1 (cid:29)x … (cid:28) x up to bone over left temporal region Stab wound size 2 (cid:29)x ‰ ’ x up to bone over body of the ---- Stab wound size 2 (cid:29) x 1 … (cid:28) x muscle deep over left lateral aspec t of abdomen one inch away from injury No.2 Scalp : As described in external injuries No.3 Skull : Healthy Vertebrae : Healthy Thorax : Left side of pleura is cut left plural cavity contains blood a mounting to 1200 ml Left Lung : Lacerated would cover of injury No.1 Heart : Right vertical is formal under cover of external injury No.1 Peritoneum : Under cover ___ of injury No. 2 and 5 is lacerated. Peritoneal cavity contains blood amounting to 1000 ml Stomach : Contains liquid semi digested foof but no smell of alcohol Large intestine : dissending colour muscles cover of external injury No. 2_________torn More detailed description of injury : On dissection stab wound which is situated over left side of chest the fourth intercostals space penetrated the l eft lung, pleura and right vertical. Right vertical is torn. There are clotted b lood in and around the inured tissues. Left thoracic cavity contains blood amoun ting to 1200 ml. Peritoneal cavity contains blood mixed with peritoneal fluid amounting t o 1000 ml Wounds margins are sharp and well defined the injuries are ante mortem. (cid:29) 18. According to Doctor, the death of the aforesaid person was due to shock and hemorrhage as a result of wound sustained by him. In other words, his death was of homicidal in nature which was occasioned by anti mortem wounds found infl icted on his person. 19. Dr. Mobidur Rahman, was the Medical Officer who examined Mrs. Punna Devi Agarwalla at Civil Hospital, Sivasagar on 19.11.1993. He was examined as PW-21. According to him, on examining the aforesaid person on police requisition on 19 .11.1993, he found as many as three cut wounds on her person which were caused b y sharp weapon and were simple in nature. 20. The claim of the prosecution that Bharamal Agarwalla died a homicidal de ath on 19.11.1993, sustaining anti mortem wounds and that Mrs. Punna Devi Agarwa lla sustained cut wounds of simple nature on the aforesaid night have not been d isputed by the accused persons. Now, the question is who caused the death of Bha ramal Agarwalla on 19.11.1993 and who inflicted wounds on the wife of said Bhara mal Agarwalla. 21. In order to get an answer to those quarries, we have gone through the eviden ce on record. PW 2 Devi Agarwalla is one of the injured persons. According to he r, on the fateful day, in the evening, they were having some discussions in thei r house. At that point of time, there was no electricity. Suddenly a gang of mis creants, their number being 5 -6, had entered into their house armed with variou s weapons. They had their faces covered with cloths. On entering their house, th ey started assaulting the inmates. 22. But her husband tried to resist such conduct on the part of the miscrean ts for which he was hacked to death. When she came to rescue her husband, the mi screants also attacked her for which she too sustained injuries on her person. She was immediately taken to hospital for treatment. In her cross-examination, s he admits that she could not recognize any of the miscreants. PW 1 Sri Binod Agarwalla is the informant. According to him, on the fate 23. ful evening, a group of miscreants numbering 5-6 entered their house having cove red their faces with cloths. At that point of time, they were having some conver sation over certain domestic matters. There was no electricity at that point of time. On entering their house, the miscreants started assaulting the inmates of the house. When his father resisted such conduct, he was hacked to death. 24. As his mother tried to save her husband from the assault of hoodlums, s he was also attacked for which she too sustained injuries on her person. She was taken to hospital later. Since the incident in question caused commotion, the m iscreants fled from the scene quickly. In this connection, he lodged an FIR whic h he proved as Exhibit 1. In his cross-examination, he admitted that Exhibit 1 w as not written by him and he did not know what was being written there. PW 3 Nirmal Duwarah deposes that his son Dhan along with Pulin were arr 25. ested by police since the police suspected them to the miscreants who tried to c ommit dacoity in the house of PW-1. PW 4 Swarna Duwarah deposes that Dhan Duwara h is her son. Police arrested him. PW 3 and PW-4 claim that their son was no wa y involved in the crime aforesaid since he was sleeping in the house when such c rime was committed. 26. PW 5 Simlal Agarwalla, PW 6 Loknath Lahan, PW 7 Surita Agarwalla, PW 8 S weet Haque, PW 9 Hari Prasad Agarwalla, PW 10 Dilak Agarwalla, PW 11 Sahab Ali, PW 14 Gawan Agarwalla, PW 15 Mukibal Haque, PW 16 Bihuman Mirdha, PW 17 Swata Na rayan Agarwalla, PW 18 Robul Hussian, PW 19 Junno Milkha are the witnesses who c ould not throw any light on the incident under consideration since they were not the eye witnesses. 27. PW 12, Shri. Jyoti Prasad Chakravarty is an advocate who was working as Judicial Magistrate during the year 1993. According to him, on 22.11.1993, he re corded the confessional statements of the accused persons which he proved as Exh ibit 7 to Exhibit.-11. It is also in his evidence that he recorded the confessio nal statements of those accused persons in accordance with the requirement of la w. A bare perusal of above evidence reveals that there were no eye witnesse 28. s to the incident under consideration. Therefore, the entire prosecution case hi nges only on the judicial confession made by the accused persons aforementioned. Learned trial court accepted the judicial confessions of the accused persons as truthful and voluntary and as such, he convicted the accused persons on the bas is of such confessions. 29. We need to know if such reliance on the confessional statements in quest ion is permissible under law. The learned counsel for the appellant strenuously submits that a confession can be relied on only when it is proved satisfactorily that the confession is voluntary and truthful. However, in the case under consi deration, there are materials on record to show that confessions in question are neither voluntary nor truthful. 30. In this context, it may be stated that the Hon’ble Apex Court of the cou ntry attaches enormous importance to the directions rendered in section 164 (2) to 164 (4) CrPC. Apex Court repeatedly held that the directions, aforesaid, are too sacrosanct and are to be followed in letter and spirit. In that regard, we may profitably peruse the decision, rendered in in Rabindra Kumar Pal (supra). T he relevant part is reproduced below:--