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PETITIONER: PREETAM

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       26/03/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) G.B. PATTANAIK (J)

CITATION:  1996 SCALE  (5)664

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Preetam ,  the appellant  herein and his brother Ishwar Lal were  placed on trial before the Sessions Judge, Morena, for committing the murder of one Chhita on June 15, 1973 and removing ornaments  from   his person. The trial ended in an acquittal  and   aggrieved  thereby   the   respondent-State preferred and appeal. The High Court dismissed the appeal so far as  it related  to Iswar lal but set aside the acquittal of the  appellant and  convicted  and  sentenced  him  under Section 302  and 404  of the  Indian Penal  Code. The  above order of reversal is under challenge in this appeal.      To prove its case the prosecution relied upon three eye witnesses, the  doctor who  held  the  autopsy,  a  judicial confession of appellant and some recoveries made pursuant to his  statement.   While  accepting   the  evidence   of  the prosecution so  for as  it sought  to prove  that Chhita met with homicidal  death, the  trial Court  rejected the entire evidence adduced  by  the  prosecution  to  prove  that  the appellant was  the author  of the  crimes.   The High  Court concurred with the finding of the trial Court that the three eye  witness   could  not  be  relied  upon  but  found  the confession voluntary  and true  and as,  according to it the evidence relating  to recovery  corroborated the  confession reversed the order acquittal relying upon the same.      Since the reasons given by the learned courts below for disbelieving the  eyewitnesses are  cogent and convincing we must leave  their evidence  out of  our  consideration.  We, therefore. proceed  to consider  whether the  High Court was justified in  making the confession the basis for conviction of the appellant.      It appears  from the  record  that  the  appellant  was arrested on  June 17,  1973 and on his production before the magistrate on  the following  day was directed to be sent to police custody,  as prayed for by the investigating officer. He remained  in such  custody till June 22, 1973 when he was sent to  judicial custody  under orders  of the  magistrate.

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Thereafter he was produced before the Magistrate on June 25. 1973 for  recording his  confession. On  his production, the Magistrate gave  him tow  hours time  to  reflect  and  then recorded  the  confession.  From  the  confession  statement (exhibit P.11)  we find  that the  magistrate (P.W.8)  first disclosed his identity and told him that he was not bound to made any  confession and  if he  did so, it might be used as evidence against  him. After administering the above caution the Magistrate  recorded the  confession and  then made  the memorandum required  under Sub-section  (4) of  Section  164 Cr.P.C. In  our considered  view, the confession so recorded is in  utter disregard  of the  statutory provisions of Sub- section (2)  of Section  164 Cr.P.C.  under the  above  Sub- section the  Magistrate is  first required to explain to the accused that  he was not bound to make a confession and that if he  did so  it might  be used  against  him.  Though  his requirement has  been complied with in the instant case, the other requirement  which obligates  the  Magistrate  to  put questions  to  the  accused  to  satisfy  himself  that  the confession was  voluntary so  as to  enable him  to give the required certificate  under Sub-section  (4). has  not  been fulfilled  for  the  learned  Magistrate  did  not  ask  any question whatsoever  to ascertain  whether the appellant was making the  confession voluntarily. In view of such flagrant omission to  comply with    the  mandatory  requirement.  of Section 164(2)  Cr.P.C. we must hold that the High Court was not at  all justified  in entertaining  the confession  as a piece of  evidence, much  less,  a  reliable  one.  One  the confession is  left out  of consideration - as it has got to be -  the only  other  piece  of  evidence  to  connect  the appellant with  the  alleged  offences  are  the  recoveries allegedly made pursuant to his statement. Even If we proceed on the  assumption that  the evidence led by the prosecution in this  behalf is  reliable, still, considering its nature, we are  unable to  hold that  it can made the sole basis for conviction even for the offence under Section 404 I.P.C.      On the  conclusions above,  we allow  this appeal,  set aide the  impugned order  of the  High Court  and acquit the appellant of the charges levelled against him. The appellant who is on bail is discharged from his bail bonds.