High Court
Case Details
Crl.A. 135/2009 BEFORE HON’BLE MR.JUSTICE K.SREEDHAR RAO HON’BLE MR. JUSTICE B.D.AGARWAL (K Sreedhar Rao,J)
Facts
The appellant Nos. 1 and 2 in Criminal appeal No. 206 of 2009 have been charged for committing the offence under Section 364/302 and 201 read with Section 34 of the IPC. The said appellants are ranked as accused Nos. 1 and 2 in session tria l. The appellant in Criminal Appeal No.135 of 2009 is the accused No.3 in sessio ns trial and he has been charged for committing the offence u/s 201 of the IPC. Accused No.4 has been acquitted by the trial court. 2. The material facts the prosecution disclose is that on 18.10.1994 one De pak Agarwal who is the deceased in the case is a boy of about 19 years was abduc ted by 9 accused persons at about 7.45 pm when he has gone to attend some public function. On 19.10.1994 an anonymous call was made to the father of the decease d demanding ransom for the safe release of his son. The father of the deceased d id pay ransom to the abductors on 6.11.1994. Despite the payment of ransom Depak Agarwal was not released. A complaint was lodged by the father of Depak Agarwal before the police alleging that a gang telephoned to him on 19.11.1994 demandin g ransom for safe release of his son, even after payment of ransom on 6.11.1994 but till date his son has not come. In the complaint there is no mention of the names of the abductors. 3. The police after registering the FIR conducted the investigation. One Nu rul Hoque Choudhury was arrested in connection with crime in NLPS Case No.53 of 1995 and during interrogation of the said accused the names of the accused perso ns and five others came to be revealed regarding the commission of the crime in question at the voluntary instance and on that basis he was arrested on 25.2.199 5. The accused Nos. 1 and 2 came to be arrested on 10.2.1995. The 7 of the accus ed who are arrested led the police and the panch voluntarily to the place where the dead body is buried. The I.O. requested for conduct of the exhumation proce eding by Executive Magistrate. After exhumation, the skeletal remains of the dea d body was found it was subjected to autopsy in the Civil Hospital in North Lakh impur. 4. It is the case of the prosecution that one Abdul Kader and Subed Ali who are arrested alongwith four accused persons herein who had pointed out the plac e where the dead body was buried were killed by public for their ghastly act. On e Nurul Hoque Choudhury who had also led the police and panch to the place of th e dead body was killed by public after filing of the charge sheet. Two of the ac cused are absconding from the beginning. Therefore, the accused Nos. 1 to 4 alon e came to be tried for the offence. 5. It is the further case of the prosecution that the accused Nos. 1 and 2 who are arrested were kept in police custody and they were taken to the Chief J udicial Magistrate, North Lakhimpur on 13.3.1995. The said Magistrate was reques ted to record the statement of accused Nos. 1 and 2 under section 164 Cr.P.C. a s a judicial confession. The Magistrate has recorded the judicial confession of accused No.1 and 2 as per Exhibit 5 and 6. The statements of the relatives of th e deceased were recorded by the I.O. and upon completion of the investigation th e I.O. filed Final report against accused Nos. 1 to 4. In the trial the accused No.4 is acquitted. The accused Nos. 1 and 2 are convicted for the offence u/s 30 2 read with section 34 of the IPC and accused No.3 is convicted u/s 201 of the I PC. 6. The accused have retracted judicial confession made before the Magistrat e. None of the relatives of the deceased have been examined by prosecution befor e the Sessions court. The material witnesses examined by the prosecution are the Executive Magistrate who conducted exhumation proceeding, the doctor who conduc ted the post-mortem, the Court Assistant of the CJM testifies the fact of record ing of judicial confession and panch witnesses to the inquest proceeding and the police officers including the Investigating Officer. The trial Court mainly rel ied upon the evidences of the prosecution relating to judicial confession made b y the accused Nos. 1 and 2, the discovery of the dead body at the instance of th e accused Nos. 1 to 3 for holding them guilty of the offence u/s 301/201 read wi th section 34 of the IPC. Accused No. 3 was not a party to the judicial confessi on and his statement u/s 164 Cr.P.C. was not recorded but he was a party to the discovery proceeding of the dead body. The trial court therefore convicted him u /s 201 IPC.
Legal Reasoning
10. With regard to the exhumation and the discovery proceeding the prosecut ion has adduced the evidence of accused Nos. 1, 2 and 3 along with other accused who were killed and the absconding accused led the police and the panch pointed out the place where the dead body was buried. The skeletal remains were recover ed after exhumation but however, the investigation does not appears to be comple te by exhumation proceeding. The prosecution has not taken the proceeding to the logical end of proving that the identity of the Corpus Delicti as that of Dipak Agarwal. The skeletal remains could not have been identified by the relatives a nd no effort is also made after exhumation to prove that the dead body was that of Dipak Agarwal. The skeletal remains not subjected to DNA test or super imposi tion test. Therefore, whatever evidence collected regarding recovery of the dea d body at the voluntary instance of the accused Nos. 1, 2 and 3 cannot be of any useful assistance to the prosecution to prove that the skeletal remains pertain to Dipak Agarwal. In that regard recovery is incomplete and cannot be of any as sistance to prove the guilty of the accused persons. Apart from these two circum stances there appears to be no material evidence for the prosecution to prove th e guilty. Therefore, after thorough consideration we find that the learned Sessi ons Judge has erred in convicting the appellants. Hence, the appeals are allowed . The accused persons are to be released forthwith and set at liberty if not req uired to be detained in any other case. Communicate the operative portion to the jail authority and to the trial court.
Arguments
7. Heard Mr. M Choudhury, the learned counsel for the accused persons at le ngth and Mr.D Das, learned Addl.P.P. Upon thorough scrutiny of the facts and evi dence the following question would arise for consideration: (i) fession of accused Nos. 1 and 2 u/s 164 Cr.PC for conviction? (ii) Whether the sessions court was right in placing reliance upon the disco very of the dead body of the deceased at the instance of accused Nos. 1, 2 and 3 Whether the sessions court was right in placing reliance on judicial con as valid and legal ? 8. With regard to the first question, Mr. Choudhury, learned counsel for th e appellants relied upon the decision of Aloke Nath Dutta & Ors.-vs-State of Wes t Bengal: (2007) 12 SCC 230. In the said decision in para Nos. 104 to 109, 116 f ollowing observations are made:- (cid:28)104. Section 164, however, makes the confession before a Magistrate adm issible in evidence. The manner in which such confession is to be recorded by th e Magistrate is provided under Section 164 of the Code of Criminal Procedure. Th e said provision, inter alia, seeks to protect an accused from making a confessi on, which may include a confession before a Magistrate, still as may be under in fluence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the quest ions to an accused brought before him from police custody, should sometime, in o ur opinion, be more intrusive than what is required in law. (See Babubhai Udesin h Parmar v. State of Gujarat.) 105. In a case where confession is made in the presence of a Magistra te conforming the requirements of Section 164, if it is retracted at a later sta ge, the court in our opinion, should probe deeper into the matter. Despite proce dural safeguards contained in the said provision, in our opinion, the learned Ma gistrate should satisfy himself whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural s afeguards, confessions are made for unknown reasons and in fact made out of fear of police. 106. Judicial confession must be recorded in strict compliance with the p rovisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confess ion is truly voluntary and had not been by reason of any inducement, threat or t orture. 107. The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner. The learned Magistrate in his eviden ce could not even state as to whether the appellant had any injury on his person or whether there had been any tainted marks therefor. 108. The courts while applying the law must give due regard to its past experien ce. The past experience of the courts as also the decisions rendered by the supe rior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 CrPC may be satisfied, the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court mu st, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must play a p roactive role in unearthing objective evidence forming the backdrop of retractio n and later the examination of such evidence of retraction. However in cases whe re none exists, the court must give the benefit of doubt to the accused. Where t here is no objective material available for verifying the conditions in which th e confession was retracted, the spirit of Section 24 of the Evidence Act (irrele vance of confession caused by inducement) may be extended to retracted confessio n. An inverse presumption must be drawn from absence of materials. 109. In a case of retracted confession, the courts while arriving at a finding o f guilt would not ordinarily rely solely thereupon and would look forward for co rroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature. 116. Whatever be the terminology used, one rule is almost certain that no judgme nt of conviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reason s for retraction. It must arrive at a finding that the confession was truthful a nd voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. We are not oblivious of so me of the decisions of this Court which proceeded on the basis that conviction o f an accused on the basis of a retracted confession is permissible but only if i t is found that retraction made by the accused was wholly on a false premise. (cid:29) 9. In the light of the ratio laid down in the case it is argued that the le arned CJM did not take necessary judicial precaution before recording the statem ent of accused Nos. 1 and 2 u/s 164 Cr.P.C.. The evidence on record disclose t hat the accused Nos. 1 and 2 were kept in police custody for more than 27 days and on the same very day of production within a gap of 3 to 4 hours the Magistra te has recorded the confessional statement of accused Nos. 1 and 2. The ratio la id down by the Supreme Court in the decision applies squarely applies to the fac ts of the case. Apart from the judicial confession there does not appear to be any corroborative materials to substantiate the materials fact referred to in th e judicial confession and it does not also appears to be voluntary. It is furthe r to be noted the accused retracted the confession made u/s 164 Cr.P.C.. Therefo re, solely upon the discrepant judicial confession recorded u/s 164 CrPC the con viction of accused Nos. 1 and 2 could not have been based.