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PETITIONER: TULSI SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       07/08/1996

BENCH: M.K.MUKHERJEE, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Tulsi Singh,  the appellant  before us,  was  arraigned before the  Special Court  Ferozepur for  the murder  of his wife  Chhinder   Kaur.  The  trial  ended  in  an  order  of conviction and sentence recorded against the appellant under Section 302  I.P.C. and  aggrieved thereby  he has filed the instant appeal.      In absence  of any  eye  witness  to  the  murder,  the prosecution rested  its case upon the confession made by the appellant before  a Judicial  Magistrate and the evidence of the  doctor   who  held  post-mortem  examination  upon  the deceased and opined that her death was homicidal.      From the  impugned judgment  we find that the appellant did not dispute the fact that his wife met with an homicidal death. He,  however, contended  that he  was not responsible for the  murder, nor did he make any voluntary confession in respect thereof  as alleged  by the prosecution. The Special Court, however,  found the  confession made by the appellant to be  voluntary  and  true  and  relying  solely  thereupon convicted the appellant.      The only  point that  has been  urged on  behalf of the appellant in  support of  this appeal  is that  the  Special Court was  not justified  in entertaining  the confession as evidence -  much less  relying upon the same - as it was not recorded in  accordance with  the provisions  of Section 164 Cr.P.C. In elaborating this contention it has been submitted that before  recording the confession Shri O.P. Garg (PW 1), the learned  Magistrate, did  not explain  to the  appellant that he  was not  bound to  made a confession and that if he did so  it might  be used  against him  not did  he put  any question to  him to  satisfy himself that the confession was being voluntarily made, as required under sub-section (2) of Section 164 Cr.P.C.      To ascertain  whether the  above contention is borne by the record or not we have carefully looked into the evidence of the  Magistrate as  also the  confession (Ext.  P/6).  On perusal thereof, we find that after his arrest the appellant was produced before the Magistrate on June 16, 1984 and sent to  police   Custody  for  a  week  on  the  prayer  of  the Investigation Officer. He was thereafter produced before the

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Magistrate on  June 22,  1984 when  he volunteered to make a confession. The  Magistrate remanded him to judicial custody with a  direction that he be produced on the following date, that is, on June 23, 1984. It appears that immediately after he was  produced on that day the learned Magistrate recorded his confession. Though the learned Magistrate testified that before recording  the confession  he satisfied  himself that the accused  (appellant) was making a voluntary statment and that after giving due caution he recorded it, the confession does not  anywhere indicate  as to  whether before recording the same  he gave him the requisite caution and put question to satisfy himself that it was being made voluntarily. These are the  basic pre-requisites  for  recording  a  confession under sub-section  (2) of  Section 164  Cr.P.C. and  a  mere endorsement  in   accordance  with   sub-section  (4)  after recording it would not fulfil the requirements of the former sub-section. Since  none of  the two requirements of Section 164 (2)  Cr.P.C. has  been complied with we are left with no other alternative  to hold that the Special Court was not at all justified  in entertaining the confession as a voluntary one. Once  the confession is left out of consideration as it has got  to be  - impugned conviction cannot be sustained in absence of  any other  incriminating  evidence  against  the appellant.      In the  result we  allow this  appeal,  set  aside  the conviction and  sentence recorded against the appellant. The appellant, who  is on  bail, is  discharged  from  his  bail bonds.