Naviullah @ Magroo vs The State Of U.P.
2013 Latest Caselaw 3641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Reserved
 
Court No. 2
 

 

 
				Criminal Appeal No. 853 of 2005
 
Naviullah alias Magroo, son of Molhey, Resident of Ali Dulahiya, Police Station Sadulla Nagar, District Gonda (Present District Balrampur)
 
								.... Appellant/Accused
 
Versus
 
The State of U.P.						.... Opposite Party.
 
Hon'ble Imtiyaz Murtaza, J. 

Hon'ble Vishnu Chandra Gupta, J.

( Delivered by Hon'ble Imtiyaz Murtaza, J. )

Challenge in the present appeal is to the Judgment and order dated 10.05.2005, passed by IV Additional Sessions Judge, Gonda in Sessions Trial no.59 of 2002 arising out of Case Crime No.132 of 2000 Police Station Sadulla Nagar, District Gonda (Present District Balrampur), whereby appellant-accused was convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs.10,000/- and two years rigorous imprisonment in default stipulation.

The brief conspectus of prosecution version shun unnecessary details is such that P.W.1 Masiuddin S/o Zhau R/o Village Ali Kulhiya, Pure Kulhiya, P.S. Sadulla Nagar the then District Gonda now Balrampur lodged a report at Police Station Sadulla Nagar on 13.03.2000 at 8.15 a.m., got written by Majibullah Siddiqui of Village Newada, that his daughter Reshma Bano aged about 9 years left home towards North at about 7.00 PM on 11.03.2000 to purchase biscuit from a nearby kiosk (Dabli) but disappeared in front of the house of Tikai Verma, he then alongwith other villagers went in search of his daughter but could not found till the morning of 13.03.2000 when he found the mutilated cadaver of his daughter in the sugarcane field of Tikai Verma. The chik FIR no.28 (Ext.Ka10) was prepared by Head Moharrir Ravi Pratap Singh (P.W.7) at P.S. Sadulla Nagar on 13.03.2000 at 8.15 AM and Case Crime No.132 of 2000 was registered under Section 302, 201 I.P.C. against unknown miscreant, the text of which was entered in GD no.16 (Ext.Ka-9); SO Vijay Bahadur Singh has been entrusted the investigation and after collecting other material and completing requisite procedure of investigation submitted charge sheet under Sections 302, 201 and 376 I.P.C. The case was committed to the court of Sessions.

The Sessions Judge has framed charges against the appellant under Sections 302, 201 and 376 I.P.C. The case of the appellant was of false implication and claimed trial. The prosecution in order to prove its case examined eight witnesses. P.W.1 Masiuddin (father of deceased), P.W.2 Ramzan Ali (real paternal uncle of deceased), P.W.3 Rabia (mother of deceased), P.W.4 Nur Mohammad (witness of memo of recovery of excreta of deceased & plain earth, scissor, cloth of appellant, cloth of deceased, plain & blood soaked earth), P.W.5 Dharm Raj (last seen witness), P.W.6 Indra Dev Dubey A.C.J.M. (recorded statement of appellant u/s 164 Cr.P.C.), P.W.7 Ravi Pratap Singh (scribe of chik FIR, GD & appeared as secondary witness for I.O. Vijay Bahadur Singh) and P.W.8 Dr.P.S.Singh (conducted post mortem of deceased); the appellant has produced two witnesses D.W.1 Home Guard no. 2312 Amin Ahmad (he alongwith a constable took appellant to court on 15.03.2000 at 10.15 a.m.) and D.W.2 Mahesh Dutt Tiwari, Bandi Rakshak, District Jail Gonda (produced Gate Book of Jail filed a copy of Jail register dated 15.03.2000, 19.20 hrs. (Ext.Kha-1).

The learned Sessions Judge convicted appellant under section 302 IPC and acquitted under section 376 and 201 IPC. Hence this appeal.

We have heard Sri Shailesh Kumar Srivastava and Sri C. M. Shukla Advocate for the appellant and Ms. Ruhi Siddiqi learned AGA for the State.

The Learned Counsel for appellant submitted that there is no direct evidence in the case. The chain of incriminating circumstances is not complete.The recoveries do not connect appellant with the crime.The Sessions Judge wrongly placed reliance on judicial confession which has been recorded in contravention of mandatory provisions of law.

Per contra learned AGA has supported the findings recorded by the trial court.

In order to appreciate the rival contentions of the counsel for the parties it is necessary to examine the evidence on record.

PW-1 Masiuddin deposed that on 11.3.2000 at about 7:00 his daughter Reshma Bano aged about 9 years, had gone to purchase biscuit from the shop of Nabiullah alias Mangru. A little earlier his eldest daughter Sakina Bano had gone to purchase Pan from the shop of Mangru. At the time of dusk his daughter Reshma Bano did not return, therefore, they started searching for her but her whereabouts could not be known. At that time Dharamraj Badhai was also sitting at his house. He told him that in the evening at about 7:00 he had gone to purchase biscuit from the shop of Mangru. At that time Reshma Bano was present at the kiosk of Mangru. Reshma Bano had asked for one Nalli and he had given her one Nalli and thereafter he came to his house. His daughter Sakina also told him that when she was going to purchase Pan Reshma Bano had also gone to the shop. She returned after purchasing Pan and her sister stayed back. On the next day, they were searching for her. On the second day Mangru had told him that after Dharamraj had purchased biscuit, Reshma had returned towards the side of her house and he had seen her going up to the house of Tikai Verma. On the third day they again started searching. The accused Naviullah told them to see towards the side of sugarcane field of Tekai Verma. He went towards the field of sugarcane crop of Tikai Verma and saw the dead body of his daughter Reshma in mangled condition. Her Shalwar was lying apart. He started crying. Several persons of the village reached there. Someone had thrown the body after committing murder and she had been brutally murdered. He also stated that he had dispute with respect to some land with Tikai Verma, Sagar and Hanuman which is still pending in the court of Commissioner. After recovery of the dead body he had lodged report, which is Ex. Ka-1.

In cross examination, he stated that he did not name anyone in the report. He had no suspicion on Naviullah. He further stated that later on he came to know that actual accused is Sonu Singh. Naviullah had knowledge that Sonu Singh had committed murder but he did not tell. Had Naviullah told him everything correctly, then actual accused Sonu Singh would have been trapped and Naviullah would not have been confined to jail. He further stated that Bharat Singh is father of Sonu Singh and is resident of village Pure Seer. He owns tractor and motorcycle. He further stated that he had seen Sonu Singh passing in front of his house. He had never seen Sonu Singh sitting with Naviullah and he had no knowledge that Sonu Singh is friendly with Naviullah. He further deposed that on the date of incident, he was not at home but went to Gaura Chowki Market; when he came back, a visitor came to him and stayed there for half an hour then he started beating fodder. He also deposed that he had enquired about his daughter from Naviullah. When he went to enquire about his daughter from Naviullah, he was returning after closing the shop at about 7:30-8:00 p.m. Naviullah used to close his shop at that time.

PW-2 Ramzan Ali deposed that Masiuddin is his real brother. On the date of incident, he was attending the marriage and returned at about 8 p.m. and came to know that Reshma Bano aged about 9 years, is missing. She had gone to purchase biscuit from the shop of Naviullah, where Dharamraj gave one Nalli to Resahma at the shop of Naviullah then came to the house of Masiuddin. In search of Reshma, this witness and Masiuddin went to the house of Naviullah where his father informed that he went to village Alinagar to watch video but when he went to Alinagar, he did not find either Naviullah or his betel shop. On second day he searched for Reshma but he did not find her. However, when Naviullah came to open his shop he intimated that Dharamraj gave one Nalli to Reshma and she returned back home. Reshma Bano was last seen by Dharamraj Badhai on the kiosk of Naviullah. His brother Masiuddin had seen the dead body of Reshma in the sugarcane field of Tikai. Thereafter report was lodged and Inquest was prepared, which is Ex. Ka-2. He further stated that in his presence and in the presence of police and Noor Mohammad, Naviullah told that at the time of rape, stool had passed and he had shown the same to the investigating officer in the field of Tekai and the investigating officer prepared recovery memo which is Ex. Ka-3. At the instance of Naviullah, a scissor was recovered and a recovery memo thereof was prepared which is Ex. Ka-4. The police had also recovered clothes of accused and prepared recovery memo which is Ex. Ka-5.

In cross examination, he admitted that the dead body was recovered on the third day and prior to that they had seen the field but nothing was found there. He deposed that the dead body was recovered on the third day at 7 a.m. when his brother had gone to answer the call of nature and he raised alarm. He has proved his signatures on Ex. Ka-3, Ka-4 and Ka-5 and stated that it was not read out to him but due to fear he signed the papers. He further stated that the recovered scissor is for cutting betel leaves. He further stated that Naviullah was arrested on the same day when body of Reshma was found.

PW-3 Rabia deposed that on the date of incident, her daughter had gone to purchase biscuit from the shop of Mangru. Mangru is also known by the name Nabiullah. On the said date, she and her husband were beating mustard seeds and Dharamraj Badhai had come to her house. She had searched for her daughter at various places. Dharamraj Badhai had told her that her daughter was present at the shop of Mangru. He had given her one Nalli (biscuit). The shop of Naviullah (Mangru) was closed. On the next day, they had enquired from Mangru. He told that he had seen her daughter alongwith Dharamraj. On the next day, her husband saw the dead body in the sugarcane field of Tikai. During her cross examination she refuted to know about Sonu Singh and further refuted of having any enmity with Tikai Verma.

PW-4 Noor Mohammad deposed that the S.I. had collected blood stained and plain earth in his presence and prepared recovery memo (Ex. Ka-6). He had also prepared the recovery memo of the clothes and slippers of Reshma which is Ex. Ka-7. The clothes of Naviullah taken into possession by the S.I. are Ex. Ka-5. He had also recovered a scissor from the shop of Naviullah which is Ex. Ka-4. He though admitted his signatures on Ex. Ka-3 but stated that he had neither read it nor it was read over to him.

In cross examination he admitted that in the shop of Naviullah, Sahu and Parasu also used to sit.

PW-5 Dharamraj deposed that Mangru alias Naviullah sells Pan, biscuit, nalli, chocolate etc. He had purchased biscuit of Re. 1 from his shop. At that time daughter of Masiuddin, Reshma was standing there. He had given her one Nalli. Thereafter he came to the house of Masiuddin. He stayed for half an hour at the house of Masiudddin. The children of Masiuddin had asked whether he had seen Reshma. He told them that he had seen Reshma Bano at the shop of Mangru.

In cross examination he denied to have given any statement that wife of Masiuddin had enquired about Reshma Bano. He stated that he is not aware as to how his statement has been written by the investigating officer and he refuted to have made such statements to the investigating officer.

PW-6 Indra Dev Dubey, Additional Civil Judge, Senior Division, Pratapgarh deposed that on 15.3.2000, he was posted as Judicial Magistrate-I, Balrampur. He stated that on the same day he had recorded the statement of Naviullah under Section 164 Cr.P.C. He had asked questions to get satisfied that the witnesses is deposing independently and without any influence. He told the witness that confession can be read against him and he may be convicted. Thereafter he had read over the statement and obtained thumb impression. He had proved the statement under Section 164 Cr.P.C. of Naviullah as Ex. Ka-8.

In cross examination he stated that he did not mention 'confession' in his statement under Section 164 Cr.P.C. After preparing the statement under Section 164 Cr.P.C., he did not write the certificate as mentioned in Section 164 (4) Cr.P.C. He had enquired from Naviullah as to why he wants to confess the crime but he did not mention the reply in his statement. He further stated that he had not recorded the statement in police custody. He was produced for the first time on 15.3.2000. He had given time to ponder over the matter. He was produced in the morning and he had given him a whole day to ponder before making the statement and his statement was recorded after 3:30 p.m. He did not ask any question about the treatment meted out to him by police. He did not mention the question-answer. When the statement was recorded, there was no police personnel present and when the statement was being recorded, no one was permitted to enter the court room.

PW-7 S.I. Ravi Pratap Singh deposed that on 13.3.2000, he was posted as Head Moharrir at P.S. Sadulla Nagar. On the basis of the written information given by Masiuddin on 13.3.2000 at 8:15 p.m., he had registered case crime no. 132/2000. He had prepared G.D. also which is Ex. Ka-9. Chik report is Ex. Ka-10. He has proved Ex. Ka-2 to Ka-7 in the handwriting of Vijay Bhadur Singh, the S.H.O. who had died in between. He also proved Ex. Ka-11, 12, 13, 14, 15, 16, 17 and 18, which were prepared by Vijay Bahadur Singh.

In cross examination, he deposed that he cannot tell as to when the articles in this case were sent to scientific laboratory and why they were sent belatedly.

PW-8 Dr. P.S. Singh, Medical Officer, PHC, Chandauli had conducted autopsy on the dead body of the deceased. He noted the following ante mortem and post mortem injuries on the person of the deceased:

ANTI MORTEM INJURIES

1.Lacerated wound 2 cm. x 0.5 cm. present in front of left elbow

2.Abrasion 10 cm. x 7 cm. present on the front of neck, below chin.

POST MORTEM INJURIES:

Both lower limbs below knee absent. Only two femur bones present which had no muscle, whole abdominal parts and walls missing. All internal organs of abdomen and perineum absent, only part of liver present.

The defence had examined DW-1 Home Guard Amin Ahmad, who deposed that in March, 2000 he was posted as Home Guard in P.S. Sadulla Nagar. On 13.3.2000 he had brought the sealed dead body of Reshma Bano in mortuary. On 15.3.2000 the accused Naviullah was taken to the court at about 10:15 a.m. where he was produced in the court of Chief Judicial Magistrate for remand. At that time S.I. had also reached there. Firstly the accused was produced in the court of C.J.M. for recording confessional statement and the C.J.M. asked them to produce him before J.M.-I. The magistrate had asked to come after lunch and thereafter statement was recorded. The remand of accused was taken and then he was lodged in Gonda jail at about 7 p.m. When the confessional statement of the accused was being recorded in the court of magistrate, they were sitting at the gate of the court. The S.I. was present alongwith accused in plain dress. When the magistrate had asked them at about 11 a.m. to go out of the court, Vijay Bahadur Singh, S.I. had brought him to the tea shop. Thereafter S.I. had got his statement recorded.

In cross examination, he admitted that after recording of Section 164 Cr.P.C. statement, they had produced the accused in the court of J.M.-I around 12 noon. Thereafter he had given time to the accused for pondering over the statement to be given by him and then statement was recorded at 3:30 p.m. When the statement under Section 164 Cr.P.C. was recorded, no police personnel was present in the court room. He himself said that S.I. was sitting.

DW-2 Mahesh Dutt Tiwari, had produced the gate book of district jail Gonda for the period 14.3.2000 to 27.3.2000. He deposed that Naviullah after being challaned from police station was lodged in jail on 15.3.2000 at 7 p.m. The copy of entry of the jail book is Ex. Kha-1.

The entire gamut of facts and evidence of the present case points to only two categories of evidence; the first is circumstantial evidence and the other is confessional evidence. So far as circumstantial evidence is concerned, the law is settled in plethora of cases like Rukia Begum Vs State of Karnataka [2011 (4) SCC 779], Arun Bhanudas Pawar Vs State of Maharashtra [2008 (61)ACC 897 (SC)] etc. wherein it is established that the court has to satisfy the following test to held the accused guilty:

1.The circumstances inferring the guilt must be coherently and steadily established.

2.The circumstances must be explicit and precisely points the guilt.

3.The circumstances should cumulatively form a complete chain that conclusively and with all human probability the crime has committed by the accused and none else; and

4.The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that guilt of the accused but should be inconsistent with his innocence.

The Sessions Judge has considered following incriminating circumstances against appellant.

1. Last Seen of the deceased along with the appellant.

2. Recoveries under section 27 of the Evidence Act.

3. Confession before magistrate recorded under section 164 CrPC.

First incriminating circumstance considered by the Sessions Judge is last seen of the deceased along with the appellant and thereafter deceased was not seen alive. P.W1 Masiuddin has not deposed about the last seen of the deceased along with appellant. In fact he had given clean chit to the appellant. He also stated that when he received information that his daughter did not return he had gone to enquire from Naviullah about 7.30 or 8 p.m. and he was going to his shop after closing. Naviullah used to close his shop at that time.

P.W.2 Ramzan Ali had not seen deceased along with appellant. He deposed that he had gone to the house of Naviullah but he was not there and his father had told him that he had gone to Ali Nagar to watch video. When he reached Ali Nagar there was no Pan shop and Naviullah was also not there. He further stated that next day when Naviullah had opened his shop he enquired about Reshma. He told him that Dharam Raj had purchased Nalli (Biscuit) and he had given one Nalli to Reshma. She had returned to her house and he had seen her going upto mango tree.

P.W.3 Rabiya is mother of deceased Reshma. She had not seen accused along with deceased.

P.W.5 Dharmraj deposed that He had purchased four nallis for one rupee and Reshma daughter of Masiuddin was also there. He had given one nalli to Reshma thereafter he came to the house of Masiuddin and stayed there for half an hour. He further stated that the children of Masiuddin enquired about Reshma Bano and he told them that he had seen her at the shop of Mangru and thereafter he did not see her. He also told them that he had given her one Nalli. He further clarified that he had told them at his house and not at Masiuddin house. He denied to have given statement to investigating officer that he had told about Reshma to the wife of Masiuddin In the cross examination he also stated that in the kiosk of Naviullah, Sahu and Parsu also sit there. The only testimony to prove the incriminating circumstance of last seen is of P.W. 5 Dharamraj. We have carefully considered the entire evidence to examine whether the evidence on record proves the incriminating circumstance of last seen. P.W.5 Dharamraj has deposed only about the presence of Reshma at the shop of appellant. P.W.1 Masiuddin, father of the deceased, stated that he was searching for Reshma and reached at about 7.30-8 p.m at the shop of appellant and at that time appellant was going home after closing his shop, whereas PW-2 Ramzan Ali stated to have gone to the house of Naviullah at night in search of Reshma Bano from where he was intimated by his father that he had gone to Ali Nagar to watch video. P.W4 Noor Mohd. also admitted that in the kiosk of Naviullah two other persons namely Sahu and Parsu also sit there. In the case of State of Goa v. Pandurang Mohite, [(2008) 16 SCC 714], the Apex Court observed that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.

It is pertinent to note that PW-5 Dharamraj was purportedly the only last seen witness who saw the deceased at the kiosk of appellant but he has not stated as to at what time he has seen the deceased at the kiosk of appellant. PW-1 Masiuddin, however, stated that on 11.3.2000 at 7 p.m., Dharamraj was at the kiosk and in cross examination he has stated that he went to the kiosk of Naviullah at 7:30 to 8:00 p.m. and found that he was closing the kiosk. Even the informant stated to have seen the deceased returning back home, whereas, the dead body of the deceased was recovered from the field of Tikai Verma on 13.3.2000 at 7:30 p.m. though according to PW-1 Masiuddin he searched the place a day before but could not find the dead body. This creates a genuine doubt on the appellant being author of crime. Moreover, there is a wide gap of time between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead.

In view of the above we are of the opinion that the prosecution has not firmly proved that the deceased was last seen along with appellant and being the author of crime.

Next circumstance considered by the trial court is recovery of a scissor at the instance of appellant from his shop. Recovery of scissor from the shop of appellant has been believed by the trial court as an incriminating circumstance.

P.W.4 Noor Mohd. has proved the recovery of scissor from his shop. It is relevant to point out that the scissor is not connected with the crime. According to serologist report no blood was found on the scissor. The testimony of P.W.8 Dr .P. S. Singh is also very relevant. He admitted that the injuries mentioned in the post mortem report could not be caused by scissor. Therefore, the Sessions Judge has wrongly considered recovery of scissor from the shop of appellant as an incriminating circumstance for completing the chain of incriminating circumstances against the appellant.

The Sessions judge did not rely upon the serologist report about the presence of semen on the underwear of the appellant.

Lastly, the most important incriminating circumstance relied upon by the trial court for recording conviction of the appellant is his judicial confession, which is quoted below:

"Bayankarta ko yeh samman diya gaya hai ki woh bayaan karne ke liye swatantra hai aur uska bayaan uske viruddh saakshya ke roop me padha jaaega. Abhiyukt Naviullah ne shapathpoorvak bayaan diya ki main apne gaon me paan bidi ki dukaan karta hoon, Sonu Thakur dopaher ko meri dukaan par aaye aur scooter se aaye thhe unke aage unka tractor ganna lekar jaa raha thha aur Sonu ne ek joda paan khaaya aur paisa baad me dene ko kaha wapas Sonu (7:30 p.m.) saadhe saat baje shaam ko aaye aur kaha ki Mashiuddin ki badi ladki Shakina jab aaye to usey rok lena aur shaam ko 7 baje shakina ki chhoti bahen hasina paan lene aayi tab maine usey rok liya uske baad uski chhoti bahen aayi aur hasina chali gayi aur chhoti bahen mere paas ruki rahi uski umr 9-10 saal rahi hogi.

Sonu 7:30 p.m. ke lagbhag aaya aur ek paan khaaya aur chhoti ladki ko do toffee khilwaya aur hamari dukaan band karwa diya aur hamari kainchi liya aur uske kahne par main chhoti ladki ko ganne ke khet me lekar uske saath gaya scooter dukan par hi khada raha.

Sonu ke kahne par ladki ka salwaar maine utara tab woh rone lagi tab sonu ne kaha ki tum iska gala dabao tab main gala dabaya aur sonu uske saath balatkaar karne laga balatkaar karte samay ladki ka peshab ka sthan bilkul phat gaya aur woh mar gayi tab case chhipane ke liye Sonu ne ladki ka pet phad diya aur ladki ka dono paer hath tod diya aur main kaapne laga aur main chal diya aur Sonu ladki ka paer kahin anyatra ghayab kar diya aur mujhe dhamkaya thha tabhi main kisi ko ghatna nahin bataya.

Main uprokt bayaan swechha se kar raha hoon mujh par koi dabav nahin hai."

Section 24 of the Evidence Act provides that, a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The relevant provisions for recording confession by magistrate are Section 164, 218 and 463 of the Code of Criminal Procedure which are quoted below.

"Section 164. Recording of confessions and statements. -- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2)The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3)If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:--

"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B. Magistrate."

(5)Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

281. Record of examination of accused.--(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.

(2)Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

(3)The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court.

(4)The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

(5)It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

(6)Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.

463. Non-compliance with provisions of Section 164 or Section 281.-- (1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.

(2) The provisions of this section apply to Courts of appeal, reference and revision."

It has been held in catena of decision by the Apex Court that before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of influence proceeding from a source interested in the prosecution still lurking in the mind of the accused. In case the Magistrate discovers on such an enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self interest, of course of trial, even if contrive subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 Cr.P.C., namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow. He should also, in plain language, be assured of protection from any sort of apprehended torture or pressure or such extraneous agent like police, in case he declines to make the statement and he give the assurance that even he declines to make the confession he shall not be remanded to police custody. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes, is not borne out of any extraneous influence exerted on him. That indeed is the essence of a "voluntary statement within the meaning of the provisions of Section 164 Cr.P.C.". Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such on the record, proof of compliance that the imperative requirement of the statutory provision, as would satisfy the court that sits in judgement in the case that the confessional statement was made by the accused voluntary and the statutory provisions were strictly complied with. Section 164 of the Code of Criminal Procedure is a salutary provision which lays down certain precautionary rule to be followed by the Magistrate regarding a confession so as to ensure the voluntariness of the confession and the accused be placed in a situation free from threat or influence of the police. Section 164 Cr.P.C. provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with.

The Apex Court in the case of Aher Raja Khima V. State of Saurashtra reported in AIR 1956 SC 217 has observed that now the law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. It was further observed that it is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he say may be used against him; and may attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time he makes the confession if it would appear to him reasonable for supposing that by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

In Sarwan Singh V. The State of Punjab reported in AIR 1957 SC 637- the Apex Court held that prima facie whether or not the confession is voluntary would be a question of fact and we would be reluctant to interfere with a finding of such question of fact unless we are satisfied that the impugned finding has been reached without applying the true and relevant legal test in the matter. As in the case of evidence given by the approver, so too unfortunately in the case of the confession of Sarwan Singh the attention of the learned Judges below does not appear to have been drawn to some salient and grave features which have a material bearing on the question about the voluntary character of the confession.

In Pyare Lal v. State of Rajasthan reported in AIR 1963 SC 1094, it has been held by the Apex Court that under S. 24 of a confession would be irrelevant if it should appear to the court to have been caused by any inducement, threat or promise. The crucial word is the expression "appears" is "seems". It imports a lesser degree of probability than proof. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstance may be adopted as the standard laid down. To rephrase it, 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. It is further observed that the threat, inducement or promise must proceed from a person in authority and it is a question of fact in each case whether the person concerned is a man of authority or not. What is more important is that the mere existence of the threat, inducement or promise is not enough but in the opinion of the court, the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceeding against him. While the opinion is that of the court, the criteria is the reasonable belief of the accused. The section therefore, makes it clear that it is the duty of the court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case. (emphasis supplied)

In the case of Chandran V. The State of Tamil Nadu (1978) 4 SCC 90, the Apex court has observed that where the Magistrate did not follow the memorandum as required by sub section (4) of section 164 Cr.P.C the Magistrate had certified that "I hope that this statement was made voluntarily". The court had rejected and observed that if, the Magistrate recording a confession of an accused person produced before him in the course of police investigation does not, on the face of the record, certify in clear, categorical term his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor justifies orally as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial.

In the case of State of M.P. V. Dayaram Hemraj AIR 1981 SC 2007 the confessional statement was not accepted by the courts on the ground " the confessional statement recorded by the Magistrate was in the form of question and answer. The record shows that he was virtually cross examined and whatever he said was in answer to leading questions put by the learned Magistrate.

In Shivappa V. Sate of Karnataka (1995) 2 SCC 76, the Apex Court has held that "it appears to us quite obvious that the Munsif Magistrate P.W. 13 did not make any serious attempt to ascertain the voluntary character of the confession. The failure of the Magistrate to make real endeavour to ascertain the voluntary character of the confession impels us to hold that evidence on record does not establish that the confessional statement of the appellant recorded under section 164 Cr.P.C. was voluntary".

In the case of Dhanajaya Reddy V. State of Karnataka (2001) 4 SCC 9, the Apex Court has held that "Omission to comply with the mandatory provisions, one of such being as incorporated in sub-section (4) of Section 164 is likely to render the confessional statement inadmissible". The words "shall be signed by the person making the confession", are mandatory in nature and the Magistrate recording the confession has no option. Mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not dispute by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal.

In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, the Apex Court observed as under:

''Section 164 CrPC provides guidelines to be followed for taking the statement of the accused as a confession. The one essential condition is that it must be made voluntarily and not under threat or coercion. This Court in Aloke Nath Dutta v. State of W.B. (2008)2 SCC(Crl)264,held as under:

"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

88.This Court in Shankaria v. State of Rajasthan 1979SCC(Crl)74stated the law thus:

''22. This confession was retracted by the appellant when he was examined at the trial under Section 311 CrPC on 14-6-1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 CrPC, the court must apply a double test:

(1) Whether the confession was perfectly voluntary?

(2) If so, whether it is true and trustworthy?

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.' "(emphasis supplied)

We have to consider the submission of the counsel for the appellant in the light of the decisions of the Apex Court.

The submissions of the counsel for the appellant challenging the confession are two fold.

First ground for challenging the confession is that the appellant did not confess to have killed the deceased and the Sessions Judge without properly appreciating the contents of the confession convicted the appellant under section 302 IPC.

Another ground for challenging the confession is that the confession has been recorded in violation of mandatory provision of law and should not have been relied upon by the trial.

The Sessions Judge has convicted appellant relying upon the confessional statement of the accused. A perusal of the confessional statement reveals that in fact he has not confessed to have committed the murder. In his confessional statement he stated that Sonu arrived at his shop at 7.30 pm and eaten one Pan and given two toffees to small girl . He got my shop closed and took out his scissor. On his direction he took the girl and accompanied to the sugar cane field and scooter remained parked there. On his direction he had taken out Salwar of the girl and she started crying. Sonu told him to press the neck and he pressed the neck and Sonu started committing rape with the girl which damaged her urinary track and she died. In order to conceal the crime Sonu had tear opened the stomach of the girl and broken both the legs and hands. He further confessed that he was shaking and left the place. Sonu had concealed the leg of the girl at some other place and he had threatened him that is why he did not tell anybody.

From the perusal of entire confessional statement it is clear that the appellant had no intention to kill the deceased and he did nothing to kill the deceased. According to his statement he had taken out Salwar of the girl and when she was crying he had pressed the neck. From the statement of appellant it is clear that the deceased died on account of rape and injury caused by Sonu, who has not been prosecuted. The Sessions Judge has already acquitted appellant under section 376 IPC.

Now we will consider that the confession which has been recorded by P.W6 can be admitted in evidence as a confession under section 24 of the Evidence Act.

The Statement of appellant (Ext.Ka.-8) u/s 164 Cr.P.C. was recorded by P.W.6 Sri Indra Dev Dubey (the then J.M.-1), in first paragraph reveals that he has explained to the appellant that he is free to give statement and his statement shall be read against him thereafter he got administered oath to the appellant and recorded the statement. Lastly, wrote a paragraph that the appellant has given his statement out of free will without any pressure. P.W.6 Sri Indra Dev Dubey stated on oath that he has asked questions from the appellant to know that he has given statement freely and without any pressure and has intimated him that the statement shall be used against him; during the cross examination he has stated that he has not given certificate as provided u/s 164 (4) Cr.P.C., he has not tried to know as to why the appellant wanted to confess, he further stated that on 15.03.2000 appellant was produced before him at 11.00 a.m. but he gave time to the appellant to think and ultimately recorded the statement at 3.30PM. P.W.-2 Ramzan Ali stated on oath that the appellant was arrested on the day when the dead body was recovered i.e. on 13.03.2000; whereas, carbon copy of G.D. Report no.14 at 18.30 of 14.03.2000 paper no. 7/11 of the record reveals that the offence was enhanced to 302/201/376 IPC against arrested appellant; even D.W.2 Mahesh Dutt Tiwari produced the Jail Register and filed a certified copy of the same Ext.Kha-1 which reveals that the appellant was sent to jail on 15.03.2000 at 19.00 hrs.

The above evidence shows that the appellant was arrested a day or two before recording of his confession and taken to Jail. Thus, it is clear that the appellant was brought to the court in police custody where his confessional statement was recorded.He was directly produced before the magistrate for recording confession from police custody.

D.W.1 Home Guard Amin Ahmad stated on oath that on 15.03.2000 the appellant was taken to Court at 10.15 am for remand and his statement under Section 164 Cr.P.C. but the court has called at 3.30 pm for recording of the same and at the time of recording the I.O. in plain cloth was present in the court.

As P.W.6 Indra Dev Dubey has stated that he gave time to the appellant to ponder over the matter before recording his confession but how the time was granted and whether at the given time appellant could be free to ponder. Moreso, the questions pertaining to mental and physical state of appellant was not taken into consideration by the Magistrate before recording confession and the mandatory certificate was not given.

The law on the issue is well settled as Lord Roche in Nazir Ahmad Vs King Emperor [AIR 1936 PC 253] observed that: "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

In the case of Babubhai Udesinh Parmar Vs. State of Gujarat (2007) 1 SCC (Crl.) 702 the Apex Court has held that 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 with the statutory provisions in a routine or mechanical.

The Apex Court further held as under:

"(16). 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 the case of Rabindra Kumar Pal v. Republic of India, (2011) 2 SCC 490, following observations have been made by the Apex Court at page 522 of the report:

"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, but 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 there is no scope for doubt of any sort of extraneous influence proceeding from a source 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 pressure from the police in case he declines to make a confessional statement.

(vi)A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial 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 credence.

(viii)During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence 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 statement before convicting the accused person on such a statement."

The judicial confession recorded by the magistrate has failed the test of being a reliable evidence owing to the reason of its been recorded in absence of knowing the mental condition of appellant at the time of recording of statement, non specifying of certificate, non mentioning of acceptance of guilt of the appellant, non mentioning of reason of confessing the crime and the treatment meted out to the appellant at the police station. Thus, seeing the holistic purview the confessional statement of the appellant has been recorded in a sketchy and hurried manner without observing the mandatory legal requirements.

The learned AGA has submitted that the confessional statement has been recorded by a magistrate and any defect in recording the confessional statement is curable under section 463 of Cr P.C. The reliance was also placed on the decision of the Apex Court in the case of Ram Singh v. Sonia, reported in (2007) 3 SCC 1 wherein it was observed in para 23 of the report as under:

"23. On 24-8-2001, upon receipt of an application moved by Superintendent of Police for recording dying declaration of A-1 by a Magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hissar, who, in turn, marked the said application to Pardeep Kumar, PW 62. On its presentation to PW 62 by DSP Man Singh at 10 p.m. the same day, both PW 62 and DSP Man Singh left for Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW 62 first sought opinion of Dr. Anant Ram (PW 32) as to the fitness of A-1 to make the statement. As in the opinion of PW 32, A-1 was fit to make the statement, PW 62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put to A-1 that PW 62 warned A-1 that she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence. In spite of this warning, A-1 volunteered to make the statement and only thereafter the statement was recorded by PW 62. In the certificate that was appended to the said confessional statement PW 62 has very categorically stated that he had explained to A-1 that she was not bound to make a confession and that if she did so, any confession she would make, might be used as evidence against her and that he believed that the confession was voluntarily made. He further stated that he read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It has been further stated by PW 62 in his evidence that at the time of recording of the confession it was he and PW 32, who were present in the room and there was neither any police officer nor anybody else within the hearing or sight when the statement was recorded. It also appears from the evidence of PW 62 that it took about 2½ hours for him to record the statement of A-1, which runs into 5 pages, which he started at 10.53 p.m. and ended at 1.28 a.m. which goes to show that A-1 took her time before replying to the questions put. PW 62 has also stated that she had given the statement after taking due time after understanding each aspect. It also appears that he was satisfied that she was not under any pressure from any corner. Therefore, it is evident from the certificate appended to the confessional statement by PW 62 that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW 62 having stated in his evidence before the court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that A-1 was not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was only he and PW 32 who were present and none else and that no police officer was available even within the precincts of the hospital. The said defect, in our view, is cured by Section 463 as the mandatory requirement provided under Section 164(2), namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW 62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession (Ext. 187) having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence.''

We have carefully considered the decision of the Apex Court and the evidence on the record.The facts of the case of Ram Singh (supra) are quite different. In the instant case the accused was directly produced before the magistrate from the police custody. According to the testimony of D.W.1 Amin Ahmad he along with one constable had produced accused for recording confession before the magistrate at around 12 O' clock. The magistrate had asked them to come after lunch. The learned magistrate had recorded the statement at 3.30 p.m. It is not disputed in the instant case that the accused was produced before the magistrate from police custody at 12 O' clock and at 3.30 pm confessional statement was recorded.The magistrate had not given certificate as provided under section 164(4) Cr P.C.

As observed by the Apex Court in the case of Pyarey Lal (Supra) a confession would be irrelevant if it should appear to the court to have been caused by any inducement,threat or promise. It was also pointed out that the crucial word is the expression ''appears'' is ''seems''as it imports a lesser degree of probability than proof.

In Singhara Singh (supra), the Apex Court held that a statement that does not prescribe to the procedure laid down in Section 164 Cr.P.C is not admissible as a confessional statement. In this case, the statement has neither been recorded by a Judicial Magistrate nor has it fulfilled procedural requirements, including that of a certificate to be appended by the Magistrate. Hence, the statement is not admissible against the appellant as a confession under Section 164. (emphasis supplied)

In the case of Chandran (supra) the Apex court has observed that where the Magistrate did not follow the memorandum as required by sub section (4) of section 164 Cr.P.C the Magistrate had certified that "I hope that this statement was made voluntarily". The court had rejected and observed that if, the Magistrate recording a confession of an accused person produced before him in the course of police investigation does not, on the face of the record, certify in clear, categorical term his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor justifies orally as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial.

In view of the above we are of the firm opinion that the confessional statement has not been recorded in accordance with mandatory provisions of law. Therefore, the trial court wrongly considered the confession as an incriminating circumstance. It is also relevant to mention here that the alleged confession is not admission of guilt by the appellant and cannot be considered by the court of law for recording finding of conviction under Section 302 IPC.

The prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to acquittal.

In the result appeal is allowed. The findings of conviction recorded by the trial court are set aside. The appellant is in jail. He shall be released forthwith unless wanted in any other case.

The office is directed to communicate this judgement to the trial court for necessary compliance.

Dated: July 4, 2013

MFA