Gurdeep
Singh @ Deep Vs. The State [1999] INSC 352 (17 September 1999)
K.T.Thomas,
A.P.Misra MISRA, J.
The
appellant-convict has filed this appeal against his conviction under Section
302, 324 of the Indian Penal Code and 5(a)(b) of the Explosive Substances Act,
1908 by the Designated
Court No. III,
Karkardooma Courts, Delhi.
He has
been sentenced under Section 302 to undergo life imprisonment and to pay a fine
of Rs. 3 lakhs. Out of which one lakh each is to be paid to the nearest
relatives of three deceased persons. In the case of default of this
non-payment, he shall also undergo rigorous imprisonment (RI) for a further
period of three years. He is also sentenced RI for a period of three years
under Section 324 IPC with a fine of Rs. 20,000/-. Out of which Rs.
10,000/-
each is to be paid to the two injured persons. In the case of default he has
further to undergo RI for a period of 6 months. He is also sentenced to undergo
RI for two years under Section 9 (b)(2) of the Explosive Substances Act, 1908
with a fine of Rs. 5,000/-. In the case of default of this non-payment, he
shall further undergo RI for two months.
In
order to appreciate issues in the appeal we are hereby giving short matrix of
facts.
According
to the prosecution case on 6th October, 1990 at about 6.10 p.m. a bomb exploded
near Chilla Engulator T Point killing three persons and injuring two persons at
NOIDA Road near Samachar Apartments. The deceased persons were Prit Pal Singh,
Jaspal Singh and Satish Bajaj. The information about bomb explosion soon
thereafter was given by passerby who informed the nearest Police Control Room
van and from where the message was flashed to the Police Control Room. Om Pal
Tanwar, PW 3, received the said message on the said date at 6.07 p.m.. Thereafter, Inspector Jeet Singh Joon, PW 15,
proceeded to the spot. He found two dead bodies lying on the spot. These bodies
were split into pieces lying on the road and one three wheeler scooter (TSR)
was found badly mutilated. One cycle was also found similarly. There were three
injured persons lying near the said spot. They were removed to JPN Hospital. One
of the injured, namely, Satish Bajaj succumbed to his injuries in the hospital.
One of the deceased, namely, Prit Pal Singh was identified with the help of his
driving licence which was in his pocket. Since driving licence was having his
photograph and address, the Investigating Officer was able to contact his
relative, namely, Pragat Singh, who is one of the accused in this case. After
recording the statement of Pragat Singh and getting the identification of the
deceased persons the aforesaid three dead bodies were sent for post mortum. It
is through Pragat Singh that police was able to know the involvement of Gurdeep
Singh, the present appellant. It is significant that out of the three deceased
two, namely, Prit Pal Singh and Jaspal Singh were closely 2elated to the
accused Pragat Singh and his wife Balbir Kaur who was also accused. The
deceased Prit Pal Singh was the adopted son of the accused Pragat Singh and
Balbir Kaur, while deceased Jaspal Singh was the nephew of the accused Pragat
Singh.
From
the investigation of the police and the evidence led by the prosecution, it was
revealed that the present appellant used to go and stay with Pragat Singh and
his wife Balbir Kaur on a number of occasions. Immediately preceding the
incident the appellant again went to live with the family of Pragat Singh since
4.10.1990. The bomb which exploded was carried by the two deceased, namely,
Prit Pal Singh and Jaspal Singh who were destinate to go to NOIDA.
This
bomb was meant for explosion in a bus and as per the planning also to kill Prit
Pal Singh about which the said two deceased were not aware. This was done in
conspiracy with Balbir Kaur wife of Pragat Singh and hence she was also
arrested on her return from Jullundhar on the 8.10.1990.
The
appellant was a terrorist who master minded a few earlier and the present
explosion. It is at the instance of the Pragat Singh that the present appellant
was arrested from the House No. K- 40, Sector 12, NOIDA.
The
significant part in the present case is, when the present appellant was under
police custody, the police of Beether (Karnataka) sought his custody for
investigation in another case where he was also involved in a bomb explosion in
a cinema hall at Beether in Karnataka. He was interrogated at Beether by the
Superintendent of Police, Beether, PW 13, where he made his confessional
statement under Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987, hereinafter referred to as the TADA Act. Therein he
admitted his complicity and involvement in the bomb explosion which was carried
by him in Delhi at NOIDA Road killing both Prit Pal Singh and Jaspal Singh.
Finally,
a challan was filed against the three accused, namely, the present appellant,
Pragat Singh and his wife Balbir Kaur. The present appellant was charged under
Sections 302, 326, 324, IPC and Section 5 of the Explosive Substances Act.
Similarly, charges were also framed against the said two accused. The said designated
court finally acquitted Balbir Kaur but convicted the present appellant and
Pragat Singh. The present appeal is only by the appellant Gurdeep Singh and
hence we are not concerned in this appeal with the other accused, namely,
Pragat Singh.
The
third deceased person, viz., Satish Bajaj was only a passerby who became victim
by chance of this bomb explosion.
It was
also not disputed that there was no eye witness in the present case. Thus the
prosecution case is based on circumstantial evidence including the confession
made by the appellant.
According
to the Inspector Jeet Singh Joon, PW 15, the Investigating Officer, he found
two dead bodies of Prit Pal Singh and Jaspal Singh split into pieces which
could have happened if these two persons were carrying the bomb which exploded.
Smt. Kusam, PW 14, is the wife of the deceased Prit Pal Singh. According to her
statement, her husband was driving a three wheeler and they were living at a
different place but during sometime in September, 1990 they shifted to the
house of accused Pragat Singh and Balbir Kaur who were her father-in-law and
mother-in-law respectively. As per her deposition both deceased persons, Prit
Pal Singh and Jaspal Singh left the house of accused Pragat Singh 15 to 20
minutes before the said explosion took place. Pragat Singh her father-in-law
was also driving a three wheeler. He had three daughters. Though earlier those
three daughters gave statements which were recorded under Section 164, Cr.P.C. in
which they had stated that the appellant used to visit their house they turned
hostile when examined in Court.
This
left the prosecution to strongly rely on the deposition of Kusam, PW 14. She
deposed that she saw the appellant coming to their house and he was then a
clean shaved person.
Her
husband always objected to Smt. Balbir Kaur of his coming to her house since
young daughters were living in the house. In spite of all this, she deposed,
the appellant used to stay in their house and was coming and going. The
appellant again came back on 4.10.1990. He continued to stay there for the next
three days, i.e., till the day of incident and till a few minutes before the
said explosion.
She
also told her father-in-law earlier that the appellant be asked to go away from
here. On the 5.10.1990 Smt. Kusam, PW 14, was to go to the hospital, her
father-in-law took her there and on the way, at Bangala Sahib Gurudwara he
purchased two plastic cans. It is alleged that they were used in preparation of
the bomb which exploded. On her return by night time, she found that the
appellant was still in the house and he stayed over-night and even the next
day.
On the
fateful day, i.e., next day she saw about 5.30 p.m., the appellant brought
drinks and was drinking liquor with her husband, father-in-law, deceased Jaspal
Singh and one Kale (cousin of deceased Prit Pal Singh). It was at this point
that she went to take her bath and on her return she found that all of them
left the house and thereafter, within fifteen to twenty minutes the bomb
explosion took place in which her husband died. She also deposed that when the
appellant came to their house he was carrying a coloured strips bag which later
is said to have been given by the appellant to and which was carried by the
deceased Prit Pal Singh when the explosion took place.
Prosecution
in order to establish the antecedents of the appellant, as a terrorist,
examined witnesses to show how he worked as a granthi (who reads religious
books) and became a terrorist. Avtar Singh, PW 20, stated that the appellant
was working as Granthi in South Anarkali Gurudwara in 1983 and he continued to
be such for two to three years.
Similarly,
Kuldeep Kaur, PW 12, also deposed that he was serving as Granthi in 1984. She
was his landlady as he was in her tenancy prior to the year 1984. At that time
the appellant was keeping a beard. The evidence of this witness that he was
having beard and the testimony of Kusam, PW 14, that when she saw him in
September, 1990 as a clean shaved person shows how the appellant brought change
in his appearance along with the change from granthi to a terrorist. This part
of prosecution evidence is used as corroborative of the confessional statement
made by the appellant.
Strong
reliance is placed by the prosecution on the testimony of Raj Shekhar Shetty,
PW 13, Superintendent of Police, Core of Detectives Karnataka. His testimony
reveals that the appellant was produced before him and he recorded his
confessional statement, in another case being Crime No. 177 of 1990, Police
Station New Town Beather, Karnataka under Section 15 of the TADA Act. Before
recording this confessional statement he deposed to have complied with all the
requirements under law. This witness asked the appellant before recording the
confession, whether he was giving his confessional statement voluntarily,
without any pressure from any body, to which the appellant replied in
affirmative and further said that he wanted to give his statement voluntarily.
He was also forewarned that such statement might be used against him and he was
not bound to make a confessional statement. But in spite of all such warnings
the appellant insisted to give his confessional statement. Even thereafter
P.W.13 gave the appellant time for reflection. Appellant was thereafter brought
back before PW 13. The appellant was again asked whether he was still willing
to make confessional statement and again he replied in the affirmative.
Thereafter, the confessional statement was recorded (in Hindi) by PW 13
himself. Then it was read over to him and he admitted it to be correct and he
signed below it. This witness then gave his endorsement and also gave his
certificate on the last page of the statement as required under law. A
comprehensive statement so recorded was sent in a cover to Deputy Commissioner
of Police of the Sessions Case with the directions that statement be deposited
with the court. The original statement recorded was placed in the Sessions
Court at Beether. The copy of which is filed in the present case and is proved
by this witness. The confessional statement of the appellant is Ex. PZ. But on
account of erratic supply of electricity the video recording could not be
properly done.
In his
confessional statement, on which strong reliance is placed by the prosecution,
the appellant admitted that he worked as Grandhi in Gurudwaras from 1981 to
1984. In 1983 he developed friendship with one Kashmira Singh. In the month of
February and March 1983 one Parkash Kaur friend of Smt. Balbir Kaur got
performed Akhand Path at her residence with the intention to get her brother
Ranjit Singh released from Jail in the murder of Baba Nirankari. He performed
the same. Later he at Baba Bakala Gurdwara came into contact with AISSF leader
Sukhwant Singh Atwal and he joined his group and offered himself to do any work
for the sake of panth. However, later he was arrested and detained under NSA
for two years. Thereafter, he met one Bhai Manjeet Singh who appointed him as
his body guard.
Then
he again met Parkash Kaur and asked her to find some place for his hideout in Delhi. She introduced him to Balbir Kaur
and since thereafter he used to go to her house as hideout in Delhi. He also stated how he made
attempts to come in close contact with hard core terrorists which is not
necessary for us to give in detail for the purpose of disposal of this case. In
the confessional statement the accused also disclosed that on 6.10.1990, the
day of incident, he handed over a bomb to Prit Pal Singh in a bag and told him
to reach it at NOIDA by a bus. He said he quietly switched on a plastic switch
of the bomb so that bomb should explode in the bus after some time. However,
both deceased Prit Pal Singh and Jaspal Singh went by scooter instead by bus.
It is also clear that neither Prit Pal Singh nor Jaspal Singh were aware of the
switch on of the bomb made by the appellant. The relevant portion of his
confession is reproduced below:
On
23.7.90 I reached Delhi by train and went to Balbir Kaurs
house. I called Parkash Kaur there. Parkash Kaur got annoyed with me after
seeing me clean shaven. Then I told her about the bomb blast in Bidar and only
then she was pacified. Next day I went to Rayya and met with Fauji and narrated
about the bomb blast in Bidar. In the month of Oct. on 6th day there was a bomb
blast in a TSR on Delhi
Noida Road which was
also caused by me. In this explosion Pritapal Singh @ Bitto and Jaspal Singh @
Kala died. They were directed to carry the bomb by bus to Noida so that the
bomb may be exploded but before handing the bomb to them I secretarly switched
on the bomb and it was done on the advice of Smt. Balbir Kaur. Balbir Kaur had
illicit relations with Pritpal Singh but Pritap Singh developed sexual
relations with her younger daughter due to which she got pregnant so she
planned to take revenge with my connivance. I while giving bomb to Pritapal Singh
@ Bitto and directing him to reach Noida by bus I wanted to kill two birds with
one stone with the connivance of Pargat Singh and his wife. But Jaspal Singh @
Kala got down from Pargat Singhs Auto and accompanied him. For reaching early
to Noida both hired a TSR and thus the bomb exploded on the way as the time had
already been fixed fifteen minutes for explosion and expired in this blast.
Thereafter, I was arrested by Delhi Police and I disclosed the incident of
Bidar.
The
prosecution, based on the aforesaid evidence and the confessional statement
made by the appellant, strongly defended the conviction passed by the Designated Court.
Learned
counsel for the respondent, Mr. V.N. Saraf, submits, the confessional statement
by itself under Section 15 of the TADA Act is sufficient and the appellant was
rightly convicted by the Designated
Court. He also
supported the findings of the Designated Court
that the circumstantial evidence proves to the hilt that appellant had
committed the offence. He further submits that the prosecution witnesses
corroborated the confessional statement of the appellant.
On the
other hand, learned counsel for the appellant, Mr. PP Singh, appearing as
Amicus Curaie, submits that there is no corroboration of the prosecution story
from the prosecution witnesses. Some of the witnesses turned hostile. The only
evidence on which strong reliance is placed by the prosecution, i.e. the
testimony of Smt. Kusam, PW 14, the wife of the deceased Prit Pal Singh, is
neither useful for any corroboration of the prosecution story on the material
particulars nor does it add to the chain of circumstances, to prove the guilt
of the appellant.
Hence
in a case of circumstantial evidence, unless the prosecution establishes the
chain of circumstances beyond all reasonable doubt no conviction can be made.
The prosecution has failed to provide this in the present case according to the
counsel. With reference to the confessional statement the submission is that it
was not voluntarily as it was made under threat. To substantiate this he refers
to the facts that his confession was recorded by S.P. Raj Shekhar Shetty, PW
13, when he was in handcuffs, there was another policeman in the same room
holding the chain of his handcuff, and even outside the room, in which his confession
was recorded, there were armed guards. Such set up, reveals by itself that
threat perception existed which was hanging over his head, thus such confession
cannot be construed to be a voluntary under section 15 of the TADA Act,
contended the counsel.
This
takes us to the question whether the confession made by the appellant under
Section 15 of the TADA Act was voluntary? It is not in dispute that a
confession was made by the appellant before P.W.13, Raj Shekhar Shetty,
Superintendent of Police (COD) Core of Detecives Karnataka in Crime No. 177 of
1990 of Police State New Town Beather, Karnataka. It is also not in dispute
that he followed the procedure prescribed under the TADA Act and Rules before
recording the confession. He, before recording the confession, explained to the
appellant that he was not bound to make a confession and if he would make, it
could be used against him.
Rule
15 of the TADA Rules, 1987 laid down the modalities as to how a confession is
to be recorded.
Sub-Rule
1 of this Rule requires the confession invariably to be recorded in the
language in which it is made and if it is not practical, in the langauge used
by such officer for official purpose or in the language of the designated
court.
Sub-rule
2 requires that such recorded confession should be shown, read or played back
to such accused who made the confession, as the case may be, and in case he
does not understand the language in which it is recorded, it has to be
interpreted to him in the language which he understands and thereafter such
accused has the liberty to add to such confession or to explain any part of it.
Sub-rule 3 says that when the confession is recorded in writing it shall be
signed by the person making the confession and there has to be certification by
the police officer before whom such confession is made that such confession was
recorded in his presence and recorded by him and it contains full and true
account of the confession. The said police officer has to make a memorandum at
the end of the confession as provided therein. Under sub- rule 4, when the
confession is recorded on any mechanical device, the memorandum referred to in
sub-rule (3) in so far as it is applicable has to be recorded by such police
officer at the end of the confession in the mechanical device. In the present
case, as we have pointed out the confessional statement was made in writing
though during the investigation in another case. But copy of it was brought as
evidence in the case and proved through PW 13 and is exhibited Ex.PZ. It is not
the case of the appellant that any procedure as required under Rule 15, as
aforesaid, or what is contained in Section 15 of the TADA Act was not followed.
The limited area of challenge to the said confessional statement is that the
same was not made voluntarily as required under Section 15(2) of the TADA Act.
For
ready reference Section 15 is quoted hereunder :
15.
Certain confessions made to police officers to be taken into consideration -
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1
of 1872) but subject to the provisions of this section, a confession made by a
person before a police officer not lower in rank than a Superintendent of
Police and recorded by such police officer either in writing of on any
mechanical device like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, shall be admissible in the trial of such
person for an offence under this Act or rules made thereunder.
(2)
The police officer shall, before recording any confession under sub-section
(1), explain to the person making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence against him and such police
officer shall not record any such confession unless upon questioning the person
making it, he has reason to believe that it is being made voluntarily.
It is
also not in dispute, nor was there any contention that the disclosure therein
does not make out all the essential ingredients of the offence for which he is
convicted. So the confession reveals, the planning and the subsequent handing
over of the bomb etc. by the appellant in the commission of the said offence.
It is also not in dispute that PW13 who recorded the confession was then a
Superintendent of Police and he recorded it in his own handwriting.
It was
contended before us that P.W.13 should not have recorded the confession as it
was not voluntary. Before we enter into this sphere of controversy to
adjudicate on this issue, we may point out that PW13 has not recorded anywhere
that it was not being made voluntarily, officer could only record such
confession when he has reasons to believe that it is being made voluntary. In
other words, it puts an obligation on such officer, who on questioning felt
that he was not going to give the confession voluntarily, not to record such
confession. But when he recorded the confession the presumption is he was
satisfied that the accused was going to make his confession voluntarily.
The
legislature has conferred a different standard of admissibility of a
confessional statement made by an accused made under the TADA Act, from those
made in other criminal proceedings. While under Sec. 15 of the TADA Act a
confessional statement by an accused is admissible even when made to a police
officer not below the rank of Superintendent of Police, in other criminal
proceedings it is not admissible unless made to a Magistrate. Section 25 of the
Indian Evidence Act debars from evidence a confession of an accused to a police
officer, except what is permitted under Sec. 27.
231,
this Court while dealing with TADA Act held that the meaning of confession as
under the Indian Evidence Act shall also apply to confession made under TADA
Act:
46.
The Act, like the Evidence Act, does not define confession and, therefore, the
principles enunciated by this Court with regard to the meaning of confession
under the Evidence Act shall also apply to a confession made under this Act.
Under this Act also, confession has either to be an express acknowledgement of
guilt of the offence charged or it must admit substantially all the facts which
constitute the offence. Conviction of confession is based on the maxim habemus
optimum testem, confitentem reum which means that confession of an accused is
the best evidence against him. The rationale behind this rule is that an
ordinary, normal and sane person would not make a statement which would
incriminate him unless urged by the prompting of truth and conscience.
Under
this Act, although a confession recorded by a police officer, not below the
rank of Superintendent of Police, is admissible in evidence, such confessional
statement, if challenged, has to be shown, before a conviction can be based
upon it, to have been made voluntarily and that it was truthful.
In
other words, there is one common feature, both in Section 15 of the TADA Act
and Section 24 of the Indian Evidence Act that the confession has to be
voluntary.
Section
24 of Evidence Act interdicts a confession, if it appears to the Court to be
the result of any inducement, threat or promise in certain conditions. The
principle therein is that confession must be voluntary. Section 15 of the TADA
Act also requires the confession to be voluntary.
Voluntary
means that one who makes it out of his own free will inspired by the sound of
his own conscience to speak nothing but the truth. As per Strouds Judicial
Dictionary, 5th Ed., at P.2633, threat means :
It is
the essence of a threat that it be made for the purpose of intimidating, or
overcoming, the will of the person to whom it is addressed (per Lush J., Wood
V. Bowron L.R. 2 Q.B. 21, cited Intimidate).
Words
and Phrases - Permanent Edition, Vol. 44 page 622, voluntary defines:
Voluntary
means a statement made of the free will and accord of accused, without
coercion, whether from fear of any threat of harm, promise, or inducement or
any hope of reward - State V. Mullin. 85 N.W. 2d. 598, 600, 249, 1own 10. At
page 629 - confession defines:
where
used in connection with statements by accused, words voluntary and involuntary
import statements made without constraint or compulsion by others and the
contrary.
Commonwealth
V. Chin kee, 186, N.E. 253, 260, 283 Mass. 248.
In
words and phrases by John B. Saunders, 3rd Edn., Vol. 4, page 401, Voluntary
defines:
The
classic statement of the principle is that the Lord Sumner in Ibrahim V. Regem
[{1914} AC 599 at 609] where he said, It has long been established as a
positive rule of English criminal law that no statement by an accused is
admissible in evidence against him unless it is shown by the prosecution to be
a voluntary statement, in the sense that it has not been obtained from him
either by fear of prejudice or hope of advantage exercised or held out by a
person in authority. The principle is as old as Lord Hale.
However,
in five of the eleven text books cited to ussupport is to be found for a narrow
and rather technical meaning of the word voluntary. According to this view
voluntary means merely that the statement has not been made in consequence of
(I) some promise of advantage or some threat (ii) of a temporal character (iii)
held pout or made by a person in authority, and (iv) relating to the charge in
the sense that it implies that the accuseds position in the contemplated
proceedings will or may be better or worse according to whether or not the
statement is made. R v Harz, R v Power {1966} 3 All ER 433 at 454, 455, per
Cantley V. So the crux of making statement voluntarily is, what is intentional,
intended, unimpelled by other influences, acting on ones own will, through his
own conscience. Such confessional statements are made mostly out of a thirst to
speak the truth which at a given time predominates in the heart of the
confessor which impels him to speak out the truth. Internal compulsion of the
conscience to speak out the truth normally emerges when one is in despondency
or in perilous situation when he wants to shed his cloak of guilt and nothing
but disclosing the truth would dawn on him. It sometimes becomes so powerful
that he is ready to face all consequences for clearing his heart.
Thus
from the aforesaid premise it has to be seen, whether on the facts and
circumstances of this case the appellants confession was voluntarily or not?
Learned counsel for the appellant has submitted the following three reasons for
holding the same to be not voluntary:- (a) The confessional statement was made
when the appellant was under hand cuffs; (b) While recording the confession
another police man in the room at some distance was present who was holding the
chain of his hand cuffs; and (c) Outside the room where his confession was
recorded it was surrounded by armed guards.
No
other, as a fact, threat, inducement or promise by any other word or deed is
said to have been made to the appellant, in any other form nor it was contended
at any stage of the proceedings culminating into his conviction.
The
only ground that the confessional statement was not voluntary are the three
factual situation, as aforesaid.
Whenever
an accused challenges that his confessional statement is not voluntary, the
initial burden is on the prosecution for that it has to prove that all
requirements under Section 15 and Rule 15 under TADA Act and Rules has been
complied with. Once this is done prosecution discharges its initial burden and
then the burden shifts on the accused person. Then it is for him to prove
through facts that the confessional statement was not made voluntarily. If such
fact was pleaded and brought on record during trial the court must test its
veracity, whether such fact constitutes to be such as to make his confessional
statement not voluntarily made. Returning to the facts of the present case the
prosecution has proved to the hilt the initial burden of compliance of both
Section 15 and Rule 15 under the TADA Act and Rules. We may at the outset
record that it is also not in dispute that the appellant was hand cuffed while
confessional statement was recorded and there was another policeman with the
chain of his handcuff at some distance in the room and there were armed guard
outside the room, where confessional statement was recorded. This leaves us to
consider the question, whether this set of situation could be construed to be
such as to infer that the confessional statement recorded was not voluntary? In
considering this we have to keep in mind the distinction between the TADA Act
and the other criminal trial. While a confession recorded under the TADA Act
before a police officer not below the rank of Superintendent of Police even
under police custody is admissible but not under other criminal trials. Keeping
an accused under police custody in what manner with what precautions is a
matter for the police administration to decide. It is for them to decide what
essential measures is to be taken in a given case for the purpose of security.
What security, in which manner are all in the realm of administrative
exigencies and would depend on the class of accused, his antecedents and other
information etc., The security is also necessary for the police personnel
keeping him in custody or other personnel of the police administration
including the public at large.
Thus
what measure has to be taken is for the police administration to decide and if
they feel greater security is required in a case of trial under the TADA Act,
it is for them to decide accordingly. The preamble of the TADA Act itself
reveals that this Act makes special provisions for the prevention of and
forthwith keeping with terrorists and disruptive activities. In fact earlier
TADA Act of 1985 was repealled to bring in the present Act to strengthen the
prosecution to bring to the books those involved under it without their
filtering out, by bringing in more stringent measures under it. In this
background, we do not find the handcuffing of the appellant or another police
man being present in the room with the chain of his handcuff or armed guards
present outside the room to be such to constitute that the appellant
confessional statement was not made voluntary. It has to be kept in mind that
Section 15 and Rule 15 of the TADA Act and the Rules have taken full precaution
to see that confessional statement is only recorded when he makes it
voluntarily. First, confession could only be recorded by a police officer to
the rank of Superintendent of Police or above. Such police officer has to
record in his own hand writing, he has to clearly tell such accused person that
such confession made by him shall be used against him and if such police
officer after questioning comes to the conclusion that it is not going to be
voluntarily he shall not record the same. Keeping this in the background which
is complied in the present case and keeping the administrative exigencies under
which an accused is kept under handcuff with armed guards etc. which may be for
the antecedents activities of the appellant as terrorist, for the purpose of
security, then this could in no way be constituted to be a threat or coercion
to the accused for making his confessional statement. The policeman holding his
chain of his handcuff was only a constable and the person recording his
confession was of the rank of Superintendent of Police. The Superintendent of
Police conveyed confidence to the appellant and made it clear to the appellant
as aforesaid. After all this, if the appellant was still ready and made his
confessional statement, then merely presence of a constable a subordinate of
Superintendent of Police, who was holding chain cannot be constituted to be
such to be a threat which could induce him not to make any voluntary statement.
Hence, we have no hesitation to hold that the presence of a constable in a room
could in fact or law to be constituted to be such to hold that such
confessional statement was not made voluntarily. Mere handcuffing and presence
of a policeman we fail to understand in what way could it be said to be a
threat to the accused appellant. It is not the case that before making
confessional statement any inducement, threat or promise by any other word or
deed was made to him by any person which resulted into his making the said
confessional statement. Firstly, we find total absence of inducement, threat or
promise in the present case as against the appellant and as we have said
handcuffing, presence of a policeman holding chain of handcuff or even keeping
armed guard outside the room which being parts of the security measure by itself
cannot penetrate into the realm as to make a confessional statement not to be
voluntary made.
For
the aforesaid reasons and on the facts and circumstances of this case, we have
no hesitation to hold that the confessional statement of the appellant is not
only admissible but was voluntarily and truthfully made by him on which
prosecution could rely for his conviction. Such confessional statement does not
require any further corroboration. Before reliance could be placed on such
confessional statement, even though voluntarily made, it has to be seen by the
court whether it is truthfully made or not. However, in the present case we are
not called upon nor is it challenged that confessional statement was not made
truthfully. So for all these reasons we hold that the impugned judgment passed
by the designated court was just and proper which does not require any
interference by this Court. We confirm the conviction and sentence. The appeal
is accordingly dismissed.
Before
concluding we would like to record our conscientious feeling for the
consideration by the legislature, if it deem fit and proper. Punishment to an
accused in criminal jurisprudence is not merely to punish the wrong doer but
also to strike warning to those who are in the same sphere of crime or to those
intending to join in such crime. This punishment is also to reform such wrong
doers not to commit such offence in future. The long procedure and the arduous
journey of the prosecution to find the whole truth is achieved some time by
turning on accused as approvers. This is by giving incentive to an accused to
speak the truth without fear of conviction. Now turning to the confessional
statement, since it comes from the core of heart through repentance, where such
accused is even ready to undertake the consequential punishment under the law,
it is this area which needs some encouragement to such an accused through some
respite may be by reducing the period of punishment, such incentive would
transform more incoming such accused to confess and speak the truth. This may
help to transform an accused, to reach the truth and bring to an end
successfully the prosecution of the case.
In
view of the finding, as aforesaid, we uphold the judgment and order passed by
the Designated Court No. III and uphold the conviction of the appellant under
the aforesaid Sections. The appeal is accordingly dismissed.
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