Singh Vs. State of Punjab  INSC 917 (7 August 1996)
Mukherjee, S.P. Kurdukar
O R D
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.
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.
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.
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.
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 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.
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