Vs. State of Madhya Pradesh  INSC 458 (26 March 1996)
M.K. (J) Mukherjee M.K. (J) G.B. Pattanaik (J)
1996 SCALE (5)664
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.
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.
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.
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
remained in such custody till June 22, 1973
when he was sent to judicial custody under orders of the magistrate.
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.
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.
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.
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