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CASE NO.: Appeal (crl.)  1635 of 2005

PETITIONER: Babubhai Udesinh Parmar                                  

RESPONDENT: State of Gujarat                                                         

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The appellant herein was a labourer.  He is said to have committed a  series of offences involving heinous crimes.  He is involved also in a case of  rape and murder of a minor girl Savita.  She was sister of Shankar Bhursinh  (complainant).  He lodged a First Information Report on 1.07.1998 inter alia  stating that he with a view to earn his livelihood came with his family to  Karamsad town.  He was staying in a shed opposite to Tirupati Petrol Pump.   He was sleeping in that shed.  He woke up at about 2 a.m. for answering the  call of nature.  At that time her sister was sleeping along with other family  members.  When he woke up again, he did not find Savita.  It was raining on  that night.  Searches were made for her.  On the next day morning, her dead  body was found lying in the surrounding field belonging to Malabhai and  Kanbhai.  Her neck was tied with a frock which was worn by her.  She was  found to be dead.  The blood was found to have been oozing out from her  private part.  The knicker worn by her was also missing.  He informed the  police.  The appellant was arrested by the investigating officer Mr. R.G.  Patel on 12.08.2002.  He purported to have made a confession about  committing rape and murdering Savita.  He also allegedly showed the place  of incidence to the investigating officer.  He prepared panchnama of the  scene of offence and recorded statement of the concerned witnesses.  He  then sent the frock worn by the deceased to Forensic Science Laboratory.   The appellant purported to have made a confessional statement before PW-2  Ambalal.

       Principally relying on or on the basis of said judicial confession made  by the appellant, he was found guilty of commission of offence.  The learned  Sessions Judge took into consideration the fact that he has been found guilty  of commission of similar offences as also other offences and, thus, imposed  death penalty on him.  The High Court affirmed the said judgment of  conviction and sentence by its judgment dated 2.03.2005.

       The High Court while recording that the confession was found not  only to be true but having been voluntarily made, opined that the same could  be relied upon.  At the same time, the High Court proceeded on the basis that  the accused was free to make retraction of his confession when his statement  under Section 313 of the Code of Criminal Procedure was recorded.  The  High Court furthermore noticed that oath should not have been administered  to the accused but opined that the same is not of much significance but  proceeded on the basis that the decisions of the Apex Court have often said  that the court cannot solely rely on the retracted confession and make it a  foundation for convicting the accused.  But, while purporting to keep the  confessional statement of the appellant aside, it examined the purported  circumstances used against him.  We are afraid, nothing has been brought on  record to show existence of any circumstance which would lead to the  conclusion that the appellant alone is guilty of commission of the offence.

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       Rape and murder of Savita is not in dispute before us.  It is also not  disputed before us as that apart from the purported judicial confession there  is no other material which can be said to be sufficient to establish the guilt of  the appellant.  The Chief Judicial Magistrate, Nadiad recorded the  confession on the basis of an application made by the said Mr. R.G. Patil.   An application was also filed to record the confession of the appellant in  another case bearing No. I.C.R. No. 123 of 1997.

       The confession was recorded on 7.09.2000.  He was in judicial  custody for a period of 16 days.  His statement is as under:

"The incident is of two years old I do not  remember the exact date.  On that day I was at my  house and at night say around 12.00 I went to the  field which is at opp Karamsad Petrol Pump.  I  don’t know whose field is this.  On being reached  to the field I saw that there was one shed with  a______, and under that shed one girl was  sleeping.  I have lifted her.  I don’t know the age of  the girl, as soon as she wanted to shout I have  closed her mouth, and behind that field one cannel  is there and I have taken the girl in that cannel,  there was a field near the cannel, and in that field  one tree namely baval was there and one floor was  constructed thereon.  I have taken the girl to that  field, I have removed the cloth of the girl in the  field, the mouth was shunted and have raped her,  and thereafter I have given the noose on the neck  with her frock as a result of which the girl was  died.  And I have taken the girl to the corner of the  field and left the field after keeping the girl in the  corner of the field.  I have not told anybody about  the incident, this is my confession regarding the  offence."

       It preceded by routine questions.  It was accompanied by a certificate  in usual form.   

       The learned Magistrate examined himself as PW-2.  In his deposition  he reproduced the statements of the appellant.  In his cross-examination, he  accepted that the confession started at about 11.15 a.m. and was completed  at about 11.30 a.m.  He did not remember that on the same day he recorded  another confession of the appellant in relation to Session Case No. 298 of  2000. He, however, accepted that he had done so when it was brought to his  notice. Recording of that confession was completed at 11.45 a.m.  Till then  no legal aid was provided to him.

       He did not examine the body of the accused.  He asked only the  routine question as to whether he was ill-treated by the police.  He accepted  that the accused was produced before him under police protection and was  also taken back under the police protection.  He stated:

"\005two things is to be noted in the confession  statement regarding voluntarily and reality.  I  cannot say that the accused has shown the reality  or not\005"

       Two inconsistencies appeared in the prosecution case vis-‘-vis the  said purported confession.  The evidence of the brother of the deceased  categorically shows that the offence was committed in between 2 a.m. and 4  a.m.  The purported confession shows that the offence was committed  around 12 O’Clock in the night.  The prosecution case proved that not only  the complainant but also other family members were sleeping in the same

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shed.  The purport of the confessions goes to show that the deceased was  sleeping alone in the shed.

       We do not appreciate as to why oath had to be administered to the  accused while recording confession.  Taking of a statement of an accused on  oath is prohibited.  It may or may not be of much significance.  But, it may  assume significance when we examine that a purported deposition of  accused was taken on 10.03.2003 wherein also his evidence on oath was  recorded in the following terms:

"I hereby state on oath that:- My Name :       Babubhai My father’s name        :       Udesing Parmar My age about    :       27 years My occupation   :       Labour Work Village of Residence:   Native Umrav Tadia  Pura, at present Karamsad Question:       Have you received copy of documents  of police investigation? Answer: Yes Question:       Is the charge sheet Exh. 4 read over to  you, Do you admit the offence? Or you want to  proceed further the judicial proceedings? Answer: I do not admit the offence. Question:       Have you engaged private advocate  for your self defence or you want to engage  advocate at the cost of Government? Answer: I have engaged free advocate."

       Ms. Hemantika Wahi, learned counsel appearing on behalf of the  State, would submit that the provisions of Section 164 of the Code of  Criminal Procedure contains a salutary principle and only in the event the  confession is found to have been voluntarily rendered, the same can be the  foundation for recording a judgment of conviction.

       A judicial confession undoubtedly is admissible in evidence.  It is a  relevant fact.  A judgment of conviction can also be based on a confession if  it is found to be truthful, deliberate and voluntary and if clearly proved.  The  voluntary nature of the confession depends upon whether there was any  threat, inducement or promise and its truth is judged on the basis of the  entire prosecution case.  [See Bharat v. State of U.P., (1971) 3 SCC 950 and  Subramania Goundan v. The State of Madras, (1958) SCR 429]

        In State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [(2005)  11 SCC 600], this Court observed:

"Confessions are considered highly reliable  because no rational person would make admission  against his interest unless prompted by his  conscience to tell the truth. "Deliberate and  voluntary confessions of guilt, if clearly proved are  among the most effectual proofs in law". (vide  Taylor’s Treatise on the Law of Evidence Vol. I).  However, before acting upon a confession the  court must be satisfied that it was freely and  voluntarily made. A confession by hope or promise  of advantage, reward or immunity or by force or  by fear induced by violence or threats of violence  cannot constitute evidence against the maker of  confession. The confession should have been made  with full knowledge of the nature and  consequences of the confession. If any reasonable  doubt is entertained by the court that these  ingredients are not satisfied, the court should

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eschew the confession from consideration. So also  the authority recording the confession - be it a  Magistrate or some other statutory functionary at  the pre-trial stage, must address himself to the  issue whether the accused has come forward to  make the confession in an atmosphere free from  fear, duress or hope of some advantage or reward  induced by the persons in authority. Recognizing  the stark reality of the accused being enveloped in  a state of fear and panic, anxiety and despair while  in police custody, the Indian Evidence Act has  excluded the admissibility of a confession made to  the police officer.  

Section 164 of Cr.P.C. is a salutary provision  which lays down certain precautionary rules to be  followed by the Magistrate recording a confession  so as to ensure the voluntariness of the confession  and the accused being placed in a situation free  from threat or influence of the police."

       However, it was categorically stated that retracted confession must be  looked upon with greater concern unless the reasons given for having made  it in the first instance are on the face of them false.   

       Section 164 provides for safeguards for an accused.  The provisions  contained therein are required to be strictly complied with.  But, it does not  envisage compliance of the statutory provisions in a routine or mechanical  manner.

       The court must give sufficient time to an accused to ponder over as to  whether he would make confession or not.  The appellant was produced  from judicial custody but he had been in police custody for a period of 16  days.  The learned Magistrate should have taken note of the said fact.  It  would not be substantial compliance of law.  What would serve the purpose  of the provisions contained in Section 164 of the Code of Criminal  Procedure are compliance of spirit of the provisions and not merely the  letters of it.  What is necessary to be complied with, is strict compliance of  the provisions of Section 164 of the Code of Criminal Procedure which  would mean compliance of the statutory provisions in letter and spirit.  We  do not appreciate the manner in which the confession was recorded.  He was  produced at 11.15 a.m.  The first confession was recorded in 15 minutes  time which included the questions which were required to be put to the  appellant by the learned Magistrate for arriving at its satisfaction that the  confession was voluntary in nature, truthful and free from threat, coercion or  undue influence.  It is a matter of some concern that he started recording the  confession of the appellant in the second case soon thereafter.  Both the  cases involved serious offences.  They resulted in the extreme penalty.  The  learned Magistrate, therefore, should have allowed some more time to the  appellant to make his statement.  He should have satisfied himself as regards  the voluntariness and truthfulness of the confession of the appellant.

       In Devendra Prasad Tiwari v. State of U.P. [AIR 1978 SC 1544], this  Court opined:

"\005It is also true that before a confessional  statement made under Section 164 of the Code of  Criminal Procedure can be acted upon, it must be  shown to be voluntary and free from police  influence and that the confessional statement made  by the appelant in the instant case cannot be taken  into "account, as it suffers from serious infirmities  in that (1) there is no contemporaneous record to  show that the appellant was actually kept in jail as

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ordered on Sept. 6, 1974 by Shri R.P. Singh,  Judicial Magistrate, Gorakhpur, (2) Shri R.P.  Singh who recorded the so called confessional  statement of the appellant did not question him as  to why he was making the confession and (3) there  is also nothing in the statement of the said  Magistrate to show that he told the appellant that  he would not be remanded to the police lock up  even if he did not confess his guilt\005"

       [See also Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC  159]

       In Parmananda Pegu v. State of Assam [AIR 2004 SC 4197], this  Court opined:

"The foremost amongst the factors that are sought  to be relied upon by the prosecution is the retracted  confession of the appellant recorded under Section  164 Cr.P.C. The confession has been extracted  supra in verbatim. Before acting on a confession  made before a Judicial Magistrate in terms of  Section 164, the Court must be satisfied first that  the procedural requirements laid down in Sub- sections (2) to (4) are complied with. These are  salutary safeguards to ensure that the confession is  made voluntarily by the accused after being  apprised of the implications of making such  confession. Looking at the confessional statement  (Ext.8) coupled with the evidence of PW 22, the  then Addl. Chief Judicial Magistrate, Dhemaji, we  have no doubt in our mind that the procedural  requirements have been fulfilled. Inter alia, PW 22  deposed that after cautioning the accused that the  confessional statement, if made, will be used in  evidence against them, he gave three hours time  for reflection during which the accused were kept  in a room attached to the Court in the immediate  presence of an office peon. PW22 further stated  that it appeared to him that the accused made the  statement voluntarily. A memorandum as required  by Sub-section (4) was also recorded. Thus the  first requirement for acting on a confession is  satisfied but that is not the end of the matter. The  Court, called upon to consider the evidence against  the accused, should still see whether there are any  circumstances appearing from the record which  may cast a doubt on the voluntary nature of the  confession. The endeavor of the Court should be to  apply its mind to the question whether the accused  was free from threat, duress or inducement at the  time of making the confession. In doing so, the  Court should bear in mind, the principle  enunciated in Pyare Lal v. State of Rajasthan  [(1963) Suppl.1 SCR 689] that under Section 24 of  the Evidence Act, a stringent rule of proof as to the  existence of threat, duress or inducement should  not be applied and a prima facie opinion based on  evidence and circumstances may be adopted as the  standard laid down. To put it in other words, "on  the evidence and the circumstances in a particular  case it may appear to the Court that there was a  threat, inducement or promise, though the said fact  is not strictly proved."

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17. Having thus reached a finding as to voluntary  nature of a confession, the truth of the confession  should then be tested by the Court. The fact that  the confession has been made voluntarily, free  from threat and inducement, can be regarded as  presumptive evidence of its truth. Still, there may  be circumstances to indicate that the confession  cannot be true wholly or partly in which case it  loses much of its evidentiary value. 18. In order to be assured of the truth of  confession, this Court, in a series of decisions, has  evolved a rule of prudence that the Court should  look to corroboration from other evidence.  However, there need not be corroboration in  respect of each and every material particular.  Broadly, there should be corroborated so that the  confession taken as a whole fits into the facts  proved by other evidence. In substance, the Court  should have assurance from all angles that the  retracted confession was, in fact, voluntary and it  must have been true\005"

       We must also notice that there was no direction to provide free legal  aid to the appellant.  He had no opportunity to have independent advice.  We  may, however, hasten to add that it does not mean that such legal assistance  must be provided in each and every case but in a case of this nature where  the appellant is said to have confessed in a large number of cases at the same  time, the State could not have denied legal aid to him for a period of three  years.

       There is another aspect of the matter which must be taken into  consideration.  The same being the manner in which the case has been dealt  with by the courts below.

       The judgment of the learned Trial Judge gives an impression that he  had proceeded on the basis that the appellant is guilty of commission of  crime in large number of crimes.  The High Court although taken note of the  propositions of law, while pointing out the corroborative pieces of evidence,  repeated only the evidences brought on records which proved the  commission of offence.  The purported corroborative evidence brought on  record by the prosecution and as noticed by the High Court did not indicate  that the appellant was guilty of commission of the offence.  The  circumstances were not such which formed links in the chain and point out  only to the guilt to the accused and accused alone.   

       We, therefore, with respect, are constrained to record disagreement  with the ultimate findings of the learned Sessions Judge as also the High  Court.  We, however, may observe that we have only considered the merit of  the present appeal.  Each case against the appellant must be judged on the  basis of the legal evidence brought on records.  Our observations, we are  sure, would not influence the learned Judges dealing with other cases  involving the appellant and pending before them.

       The judgment of conviction and sentence is set aside and the appeal is  allowed.