PETITIONER:
SHIVAPPA
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT29/11/1994
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MUKHERJEE M.K. (J)
CITATION:
1995 AIR 980 1995 SCC (2) 76
JT 1994 (7) 712 1994 SCALE (5)52
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
DR A.S. ANAND, J.- This appeal, by special leave, has been
filed by Shivappa s/o Bundappa who was Accused 2 in the
trial court and Appellant 2 in the High Court and is
directed against the order of the High Court of Karnataka
dated 21-9-1990 upholding his conviction and sentence for
the offence under Section 302 IPC. The appellant along with
Smt Sudha (A-1) and four others were tried for various
offences in connection with the murder of Suresh Singhi on
4-12-1986 at about 3.00 a.m.
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2.According to the prosecution case Smt Sudha (A-1) was
working as a nurse in the primary health centre at Ullagaddi
Khanapur. She was married to the deceased Suresh Singhi.
The deceased used to live at Belgaum but used to visit his
wife, A-1, at Ullagaddi Khanapur, where she was working,
quite often. The appellant Shivappa was working as a health
guide at the primary health centre at Ullagaddi Khanapur.
The husband of Sudha was addicted to drinking and there used
to be frequent quarrels between the couple. In order to
raise money for buying liquor, the deceased used to sell
household articles, if he could not get cash from his wife.
The deceased also suspected his wife to be having illicit
relations with Ramchanda Hanamant Pujari (A-4) who was
working as a basic health worker and with Dr Ashok Madhukar
(A-6), who was working as a Medical Officer at the primary
health centre Ullagaddi Khanapur at the relevant time. The
deceased, after consuming liquor, shortly before the day of
occurrence went to the house of A-4 and accusing him of
having illicit relations with his wife (A-1) abused him. He
thereafter went to the house of A-6 and abused him also in
the presence of some of his patients accusing him that he
was having illicit relations with his wife. On account of
these accusations, the relations between the deceased, A-1,
A-4 and A-6 had become strained. These three accused along
with the appellant, A-3 and A-5 used to meet and discuss the
behaviour of the deceased. It is alleged that on 10-10-
1985, the appellant along with A-4, A-5 and A-6 met in the
Gotur Inspection Bungalow and hatched a conspiracy to do
away with the deceased by causing his murder. It was
planned that the murder would be committed during the night
and the dead body would be thrown on Poona-Bangalore Road to
give it the complexion of an accident. It was also decided
that A-1 would thereafter file a complaint with the police
saying that her husband had died in a motor accident and
when the dead body would be brought for postmortem
examination before the Medical Officer, A-6, he would
certify that the death had been caused by an accident. On
2-12-1985, the appellant along with A-1, A-4 and A-5 worked
out the plan for committing the murder of the deceased. On
3-12-1985 the deceased came to visit his wife, A-1 at
Ullagaddi Khanapur. As per the plan in the early hours of
the morning of 4-12-1985, A-3 went to the house of A-1 and
asked her to come for a delivery case. A-1 along with her
husband (deceased) and A-3 went towards Henchinal and on the
way the appellant, along with A-4 and A-5 met them. A-4
informed A-1 and A-3 that the patient had already delivered
the baby and they could go back to their house. Thereupon,
the appellant along with A- 1, A-3, A-4, A-5 and the
deceased proceeded towards Ullagaddi Khanapur. When they
had reached near the footpath leading from Henchinal cross
to Ullagaddi Khanapur, the deceased was caught hold of by A-
1 to A-5. A rope was tied round the neck of the deceased
and his wife A-1 pulled the rope thereby causing the death
of the deceased. As per the original plan, the dead body
was brought and laid on Poona-Bangalore Road, To lend
authenticity to the story of an accident, A-1 went to the
house of PW 2, located nearby, to bring water telling him
about the accident of her husband. Thereafter, she prepared
the complaint Exh.
79
P-52 and went to the police station at 7.15 a.m. and lodged
the report with PW 18, the In-charge of the police station.
An FIR in crime Case No. 221/85 for the offence punishable
under Sections 279/304-A IPC and Section 89 of the Motor
Vehicles Act was registered on the basis of the said
complaint. The dead body was sent for postmortem
examination to A-6. However, A-6 informed PW 18 that the
case being a complicated one, the postmortem examination may
be got done through some other doctor. Consequently, a
requisition was made to the Medical Officer, Primary Health
Centre, Daddi to get the postmortem of the dead body
conducted. The investigating officer during the course of
investigation recorded the statements of various witnesses.
After the receipt of the postmortem report, which disclosed
that the death had not been caused as a result of injuries
received in any road accident, the viscera of the deceased
was sent for chemical examination to Bangalore. After the
receipt of the postmortem report an offence under Section
302 IPC was registered. It was during further investigation
that A-1 volunteered to show the place where offence had
been committed and later on the appellant volunteered to
show the place where the rope had been burnt. Both A-1 and
the appellant also volunteered to make confessional
statements. The investigating officer PW 25 sent a request
report to the Judicial Magistrate, 1st Class, Hukkeri to
record the confessional statements of A-1 and the appellant.
The appellant was produced before the Magistrate on 21-7-
1986 and the Magistrate adjourned the recording of the
statement till 22-7-1986, so that the appellant could
reflect in the meantime. The appellant was remanded to the
sub-jail after the Magistrate had recorded preliminary
statement of the appellant after asking him various
questions. The confessional statement of the appellant was
thereafter recorded by the Magistrate PW 17 on 22-7-1986.
Six weeks later appellant retracted the same by addressing a
communication Ex. D-1 to the Magistrate.
3.The confessional statement of the appellant, recorded
under Section 164 CrPC by PW 1′/ on 22-7-1986, was the only
piece of evidence on which the trial court relied upon and
convicted the appellant. In the High Court, the submission
made on behalf of the appellant that the confessional
statement recorded by PW 17 was neither voluntary nor true
and trustworthy was repelled. The High Court found that the
confessional statement, even though retracted at a later
stage, was voluntary and true and held that the trial court
had rightly relied upon the same. Consequently, the
conviction and sentence of the appellant for the offence
under Section 302 IPC was upheld. Hence this appeal.
4. We have heard learned counsel for the parties.
5. The only piece of evidence relied upon against the
appellant is the confessional statement recorded by PW 17 on
22-7-1986. A confession, if voluntary and truthfully made
is an ”efficacious proof of guilt”. It is an important
piece of evidence and therefore it would be necessary to
examine whether or not the confession made by the appellant
was voluntary, true and trustworthy. The statutory
provisions dealing with the recording of confessions and
statements by the Metropolitan Magistrate and Judicial
80
Magistrates are contained in Section 164 CrPC and the rules
framed by the High Court containing guidelines for recording
of confessions. Unless the Court is satisfied that the
confession is voluntary in nature, it cannot be acted upon
and no further enquiry as to whether it is true and
trustworthy need be made.
6.From the plain language of Section 164 CrPC and the
rules and guidelines framed by the High Court regarding the
recording of confessional statements of an accused under
Section 164 CrPC, it is manifest that the said provisions
emphasis an inquiry by the Magistrate to ascertain the
voluntary nature of the confession. This inquiry appears to
be the most significant and an important part of the duty of
the Magistrate recording the confessional statement of an
accused under Section 164 CrPC. The failure of the
Magistrate to put such questions from which he could
ascertain the voluntary nature of the confession detracts so
materially from the evidentiary value of the confession of
an accused that it would not be safe to act upon the same.
Full and adequate compliance not merely in form but in
essence with the provisions of Section 164 CrPC and the
rules framed by the High Court is imperative and its non-
compliance goes to the root of the Magistrate’s jurisdiction
to record the confession and renders the confession unworthy
of credence. Before proceeding to record the confessional
statement, a searching enquiry must be made from the accused
as to the custody from which he was produced and the
treatment he had been receiving in such custody in order to
ensure that there is no scope for doubt of any sort of
extraneous influence proceeding from a source interested in
the prosecution still lurking in the mind of an accused. In
case the Magistrate discovers on such enquiry that there is
ground for such supposition he should give the accused
sufficient time for reflection before he is asked to make
his statement and should assure himself that during the time
of reflection, he is completely out of police influence. An
accused should particularly be asked the reason why he wants
to make a statement which would surely go against his self-
interest in course of the trial, even if he contrives
subsequently to retract the confession. Besides
administering the caution, warning specifically provided for
in the first part of sub-section (2) of Section 164 namely,
that the accused is not bound to make a statement and that
if he makes one it may be used against him as evidence in
relation to his complicity in the offence at the trial, that
is to follow, he should also, in plain language, be assured
of protection from any sort of apprehended torture or
pressure from such extraneous agents as the police or the
like in case he declines to make a statement and be given
the assurance that even if he declined to make the
confession, he shall not be remanded to police custody.
7.The Magistrate who is entrusted with the duty of
recording confession of an accused coming from police
custody or jail custody must appreciate his function in that
behalf as one of a judicial officer and he must apply his
judicial mind to ascertain and satisfy his conscience that
the statement the accused makes is not on account of any
extraneous influence on him. That indeed is the essence of
a ‘voluntary’ statement within the meaning of the
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provisions of Section 164 CrPC and the rules framed by the
High Court for the guidance of the subordinate courts.
Moreover, the Magistrate must not only be satisfied as to
the voluntary character of the statement, he should also
make and leave such material on the record in proof of the
compliance with the imperative requirements of the statutory
provisions, as would satisfy the court that sits in judgment
in the case, that the confessional statement was made by the
accused voluntarily and the statutory provisions were
strictly complied with.
8.From a perusal of the evidence of PW 17, Shri Shitappa,
Additional Munsif Magistrate, we find that though he had
administered the caution to the appellant that he was not
bound to make a statement and that if he did make a
statement that may be used against him as evidence but PW 17
did not disclose to the appellant that he was a Magistrate
and that the confession was being recorded by him in that
capacity nor made any enquiry to find out whether he had
been influenced by anyone to make the confession. PW 17
stated during his deposition in court: “I have not stated to
the accused that I am a Magistrate” and further admitted: “I
have not asked the accused as to whether the police have
induced them (Chithavani) to give the statement.” The
Magistrate, PW 17 also admitted that “at the time of
recording the statement of the accused no police or police
officials were in the open court. I cannot tell as to
whether the police or police officials were present in the
vicinity of the court’.’. From the memorandum prepared by
the Munsif Magistrate, PW 17 as also from his deposition
recorded in court it is further revealed that the Magistrate
did, not lend any assurance to the appellant that he would
not be sent back to the police custody in case he did not
make the confessional statement. Circle Police Inspector
Shivappa Shanwar, PW 25 admitted that the sub-jail, the
office of the Circle Police Inspector and the police station
are situated in the same premises. No contemporaneous
record has been placed on the record to show that the
appellant had actually been kept in the sub-jail, as ordered
by the Magistrate on 21-7-1986 and that the was out of the
zone of influence by the police keeping in view the location
of the sub- jail and the police station. The prosecution
did not lead any evidence to show that any jail authority
actually produced the appellant on 22-7-1986 before the
Magistrate. That apart, neither on 21-7-1986 nor on 22-7-
1986 did the Munsif Magistrate, PW 17 question the appellant
as, to why he wanted to make the confession or as to what
had prompted him to make the confession. It appears to us
quite obvious that the Munsif Magistrate, PW 17 did not make
any serious attempt to ascertain the voluntary character of
-the confessional statement. The, failure of the Magistrate
to make a real endeavour to ascertain the voluntary
character of the confession, impels us to hold that the
evidence on the record does not establish that the
confessional statement of the appellant recorded under
Section 164 CrPC was voluntary. The cryptic manner of
holding the enquiry to ascertain the voluntary nature of the
confession has left much to be desired and has detracted
materially from the evidentiary value of the confessional
statement. It would, thus, neither be prudent nor safe to
act upon the confessional statement of the
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appellant. Under these circumstances, the confessional
statement was required to be ruled out of consideration to
determine the guilt of the appellant. Both the trial court
and the High Court, which convicted the appellant only on
the basis of the so-called confessional statement of the
appellant, fell in complete error in placing reliance upon
that statement and convicting the appellant on the basis
thereof. Since, the confessional statement of the appellant
is the only piece of evidence relied upon by the prosecution
to connect the appellant with the crime, his conviction
cannot be sustained.
9.This appeal, consequently, succeeds and is allowed. The
conviction and sentence of the appellant are set aside. The
appellant is directed to be released from custody forthwith
unless required in any other case.