CRIMINAL APPEAL NO. 61 (J) OF 2005 - Gauhati High Courtghconline.nic.in/Judgment/CRLA61J2005.pdf ·...
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CRIMINAL APPEAL NO. 61 (J) /05 Page 1 of 34
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL APPEAL NO. 61 (J) OF 2005
Abdul Hakim Quadri
………..Appellant
-Versus-
State of Assam
………Respondent
P R E S E N T HON’BLE THE CHIEF JUSTICE MADAN B. LOKUR
HON’BLE MR. JUSTICE BD AGARWAL
For the Appellant : Mr. B.K. Singh, Amicus Curiae
For the respondent : Mr D.Das, Addl. P.P., Assam.
Date of hearing : 26.7.2011 and 27.7.2011
Date of judgment : 05.09.2011.
JUDGMENT & ORDER (CAV)
B.D.AGARWAL,J.
Having been convicted for the offence of murder and
criminal trespass the convict is challenging the judgment and order
dated 23.11.2004, passed by the learned Addl. Sessions Judge
(adhoc) Kamrup, Guwahati, in Sessions Case No. 51 (K) of 2004. By
the impugned judgment the trial court has convicted the appellant
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under Sections 302 and 448 of the Indian Penal Code („IPC‟ in short)
and he has been sentenced to undergo Imprisonment for Life and 1
(one) year rigorous imprisonment with fine and default sentence for
the respective offences. Both the sentences are directed to run
concurrently. Although the accused was also charged under section
354 IPC but the accused has been acquitted from the said charge.
2. We have heard Shri B.K. Singh, learned Amicus Curiae
for the appellant and Shri D.Das, learned Addl. Public Prosecutor
for the State of Assam. We have also gone through the impugned
judgment and evidence proffered by the prosecution during the
trial. While cross-examining prosecution witnesses and also giving
statement under Section 313 of the Code of Criminal Procedure
(briefly „CrPC‟) the accused neither put forward any defence alibi
nor any evidence in defence was tendered.
3. Before venturing into the appreciation of evidence and
the arguments of both the sides it would be proper to give a bird‟s
eye view upon the prosecution story, which runs as follows :-
3.1 The offence took place at about 6 a.m. on 22.4.2003. The
deceased Keshab Kumar Verma was owning a 3 (three)storey
building at G.S. Road, Paltan Bazar, Guwahati. Except his
residential accommodation, the deceased had let-out the entire
building to various tenants for commercial purposes. The deceased
was living in the second floor with his family. The
accused/appellant was practising in „unani‟ medicines. His
chamber was also in the second floor. The residence of the deceased
and the chamber of the appellant were intervened by the shop of
PW 8.
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3.2 There appears to be some dispute in between the
deceased and the appellant for non-payment of rent and threat of
eviction of the appellant from the tenanted premise. The murder
was committed in the tenanted chamber of the appellant. After
committing the offence the appellant bolted the door from outside
and then entered the residential accommodation of the deceased
and misbehaved with the daughter and wife of the deceased and
also threatened them for physical assault. However, the appellant
was pushed out of the room. Thereafter, the wife and daughter of
the deceased went in search of their husband/father. With the help
of house guard (PW 3) it was discovered that the deceased was
hammered to death and the dead body was lying inside the
chamber of the accused. Then the door was broken and the
deceased was taken to a nearby private hospital, with a hope that
the deceased had some life. However, the doctors declared the
injured as dead.
4. The written FIR was lodged by the wife of the deceased
almost within an hour, suspecting that her husband was murdered
by the appellant. The FIR was registered as Paltan Bazar Case No.
132 of 2003 under Sections 448, 323, 307, 302, 34 IPC. During the
course of investigation statements of the witnesses were recorded;
inquest upon the dead body was held; statements of some of the
witnesses were obtained under Section 164 Cr.P.C.; necropsy upon
the dead body was conducted. The accused surrendered in the
court on 7.5.2003, after rejection of his application for anticipatory
bail. During interrogation the accused led the investigating officer
for recovery of the hammer, which was alleged to have been used in
the offence of murder. It was followed by giving a confessional
statement by the accused before a Judicial Magistrate on 15.5.2003.
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The investigating officer had also seized few other items from the
scene of the crime. After conclusion of the investigation charge
sheet was submitted and the accused was put to trial for the
offences, indicated earlier in this judgment.
5. To bring home the offence the prosecution examined
altogether 14 (fourteen) witnesses. PWs 1 and 2 are the daughter
and wife of the deceased respectively; PW 3 is the watchman of the
building; PWs 4, 6, 8 and 9 are the tenants of the deceased; PW 5 is
the reported witness from the neighbourhood; PW 7 is another
reported witness; PW 10 is the Judicial Magistrate; PW 11 is a
witness to the seizure of hammer; PW 12 is the autopsy doctor and
PWs 13 and 14 are the police officers.
6. After the conclusion of the prosecution evidence
statement of the accused under section 313 CrPC was recorded on
15.9.2004. In the said statement the accused declined his
involvement in the incident but, at the same time, no defence
evidence was tendered. In this way, the trial came to an end and the
impugned judgment was pronounced on 23.11.2004.
7. From the impugned judgment it appears to us that the
appellant has been convicted for the offence of murder and criminal
trespass on the basis of confessional statement; oral evidence of
PWs 1 and 2 and circumstantial evidences.
8. During the course of hearing, the learned counsel for the
appellant argued that the confessional statement ought not to have
been relied upon by the trial court since sufficient time for reflection
was not given and also relevant searching questions were not put to
the accused. In this regard, the learned counsel for the appellant
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relied upon the judgment of this court rendered in the case of
Kanhailal Guwalla –vs- State of Assam, reported in (2011) 3 GLR
820, as well as another judgment of this court rendered in State of
Arunachal Pradesh –Vs- Sukdev Urangg & Ors. (Crl. Hill Reference
No. 1 of 2005 DO 5.3.2009). The learned counsel also submitted that
the prosecution evidence did not form a complete chain to hold the
appellant guilty of murder and other offences. With regard to the
recovery of hammer, the learned counsel submitted that this
recovery was also hit by Section 27 of the Evidence Act, inasmuch
as, the statement of the accused was not recorded by the I.O., before
taking him to the place of recovery. In this regard, the learned
counsel cited the authority of Gauhati High Court, rendered in the
case of Deoraj Goala and Anr. –vs- State of Assam; (2011) 2 GLR
(NOC) 1. Finally, the learned counsel submitted that the offences
were committed in a heat of passion and provocation from the
deceased.
9. The learned Public Prosecutor, on the other hand,
contended that there was no infirmity in recording the confessional
statement as well as recovery of the hammer. The learned counsel
submitted that there are more than sufficient incriminating
evidences to affirm the conviction.
10. Apparently and admittedly there is no eye witness to
the offence of murder. This offence has been proved on the basis of
a series of incriminating circumstances. Leaving aside
circumstances like lodging of the FIR promptly, naming the accused
as the sole assailant and his surrender in the court after few days of
the offence, the prosecution is primarily relying upon the following
circumstances:-
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(i) confessional statement of the accused/appellant;
(ii) recovery of the dead body from the chamber of the
accused, which was found locked from outside;
(iii) enmity between the accused and deceased for non-
payment of rent;
(iv) recovery of hammer at the instance of the accused; and
(v) abscondence of the accused for nearly two weeks.
11. With regard to the offence of criminal trespass, the
testimony of PWs 1 and 2 are enough, which will be discussed
along with other evidences for the offence of murder.
12. CONFESSION
There are series of judgments from the Hon‟ble
Supreme Court holding that conviction of a person can be recorded
on the sole basis of confessional statement of the accused, provided
it has not been retracted promptly and that such statement has been
given voluntarily and it inspires the confidence of the court.
Without multiplying authorities in this regard, the observations of
Their Lordships of the Apex Court made in the following cases
would be sufficient to sense the values, impact and significance of
confessional statements of an accused in a criminal trial.
12.1. In the case of State of Rajasthan –vs- Raja Ram;
reported in (2003) 8 SCC 180 , the Hon‟ble Supreme Court has
highlighted the inherent strength and value of such a statement in
the following words:-
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―……….The law is clear that a confession cannot be used against
an accused person unless the Court is satisfied that it was
voluntary and at that stage the question whether it is true or
false does not arise. If the facts and circumstances surrounding
the making of a confession appear to cast a doubt on the veracity
or voluntariness of the confession, the Court may refuse to act
upon the confession, even if it is admissible in evidence One
important question, in regard to which the Court has to be
satisfied with is, whether when the accused made confession, he
was a free man or his movements were controlled by the police
either by themselves or through some other agency employed by
them for the purpose of securing such a confession. The question
whether a confession is voluntary or not is always a question of
fact. All the factors and all the circumstances of the case,
including the important factors of the time given for reflection,
scope of the accused getting a feeling of threat, inducement or
promise, must be considered before deciding whether the Court is
satisfied that its opinion the impression caused by the
inducement, threat or promise, if any, has been fully removed. A
free and voluntary confession is deserving of highest credit,
because it is presumed to flow from the highest sense of guilt. [See
R. v. Warwickshall: (1783) Lesch 263)]. It is not to be conceived
that a man would be induced to make a free and voluntary
confession of guilt, so contrary to the feelings and principles of
human nature, if the facts confessed were not true. Deliberate and
voluntary confessions of guilt, if clearly proved, are among the
most effectual proofs in law.‖ (emphasis is ours)
12.2 In the case of State (NCT of Delhi) –Vs- Navjot Siddhu;
reported (2005) 11 SCC 600, the Apex Court reiterated the
evidentiary value of confessional statements. The relevant
observations of Their Lordships are as below:-
“32. As to what should be the legal approach of the Court
called upon to convict a person primarily in the light of the
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confession or a retracted confession has been succinctly
summarized in Bharat vs. State of U.P. [1971 (3) SCC 950].
Hidayatullah, C.J., speaking for a three-Judge Bench observed
thus:
"Confessions can be acted upon if the court is satisfied
that they are voluntary and that they are true. The voluntary
nature of the confession depends upon whether there was any
threat, inducement or promise and its truth is judged in the
context of the entire prosecution case. The confession must fit
into the proved facts and not run counter to them. When the
voluntary character of the confession and its truth are accepted,
it is safe to rely on it. Indeed a confession, if it is voluntary and
true and not made under any inducement or threat or promise, is
the most patent piece of evidence against the maker. Retracted
confession, however, stands on a slightly different footing. As
the Privy Council once stated, in India it is the rule to find a
confession and to find it retracted later. A court may take into
account the retracted confession, but it must look for the reasons
for the making of the confession as well as for its retraction, and
must weigh the two to determine whether the retraction affects
the voluntary nature of the confession or not. If the court is
satisfied that it was retracted because of an after-thought or
advice, the retraction may not weigh with the court if the general
facts proved in the case and the tenor of the confession as made
and the circumstances of its making and withdrawal warrant its
user. All the same, the courts do not act upon the retracted
confession without finding assurance from some other sources as
to the guilt of the accused. Therefore, it can be stated that a true
confession made voluntarily may be acted upon with slight
evidence to corroborate it, but a retracted confession requires the
general assurance that the retraction was an after-thought and
that the earlier statement was true………..‖
12.3. The aforesaid authorities were again followed in the
case of Bishnu Prasad Sinha –Vs- State of Assam, reported in 2008
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2 GLT (SC 1), wherein also, the Apex Court reiterated the legal
position of confessional statements in the following language:
“(31) A confessional statement, as is well known, is
admissible in evidence. It is relevant fact. The court may rely
thereupon if it is voluntarily given. It may also form the basis of
the conviction, wherefore the court may only have to satisfy
itself in regard to voluntariness and truthfulness thereof and in
given cases, some corroboration thereof. A confession which is
not retracted even at a later stage of the trial and even accepted
by the accused in his examination under Section 313 of the Code,
in our considered opinion, can be fully relied upon.‖
13. In view of the importance and sanctity attached to the
confessional statements of the accused, the legislature thought it
proper to put certain preconditions for recording confessional
statements. The requirements of law have been incorporated in
Section 164 CrPC. In the line of statutory requirements, the Gauhati
High Court has also issued certain guidelines to put searching
questions to the accused persons to ascertain that such statements
are given voluntarily and not under threat or influence from any
quarter. At the same time, there are plethora of judgments from the
Apex Court and various High Courts, imploring upon the courts to
ascertain that the confessional statement is voluntary in real sense
and that it contains a true and full account of the incident, before
making it the sole basis for conviction. The safeguards and
protection to be taken by Judicial Magistrates before recording
confessional statements have been discussed in various judgments
and a few of them have been considered by this court in the case of
Kanhailal Guwalla (supra), which are reproduced below :-
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13.1 Sarwan Singh Rattan Singh v. State of Punjab, 1957 SCR 953
―There can be no doubt that, when an accused person is
produced before the Magistrate by the investigating officer, it is
of utmost importance that the mind of the accused person should
be completely freed form any possible influence of the police and
the effective way of securing such freedom from fear to the
accused person is to send him to jail custody and give him
adequate time to consider whether he should make a confession
at all. It would naturally be difficult to lay down any hard and
fast rule as to the time which should be allowed to an accused
person in any given case. However, speaking generally, it would,
we think, be reasonable to insist upon giving an accused person
at least 24 hours to decide whether or not he should make a
confession. Where there may be reason to suspect that the
accused has been persuaded or coerced to make a confession, even
longer period may have to be given to him before his statement is
recorded.‖
13.2 Babubhai Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268
― 15. Section 164 [of the CrPC] provides for safeguards for
an accused. The provisions contained therein are required to be
strictly complied with. But, it does not envisage compliance with
the statutory provisions in a routine or mechanical manner.
16. The court must give sufficient time to an accused to
ponder over as to whether he would make confession or not.‖
13.3 State of Punjab v. Harjagdev Singh, (2009) 16 SCC 91
―It is hardly necessary to emphasise that the act of
recording confessions under Section 164 of the Code is a very
solemn act and in discharging his duties in the said section, the
Magistrate is required to take care to see that the requirements
of…. Section 164 of the Code are fully satisfied.‖
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13.4. The Division Bench of this Court also in the case of
Sukdev Urangg (supra), reiterated about strict adherence to the
safeguards provided under Section 164 CrPC on the premise that
safeguards are necessary to be followed religiously since conviction
can be based on the basis of a confessional statement. Their
Lordships have observed that the duty cast upon the Magistrates is
a pious one and it does not envisage compliance of the statutory
provisions in a routine and mechanical manner.
14. In the case before us, what we notice is that the accused
surrendered in the court on 7.5.2003 and then he remained in police
custody for a week. Finally, the accused was produced in the court
on 14.5.2003 with a request to record his confessional statement.
According to the Judicial Magistrate (PW10), the accused was then
sent to judicial custody for reflection. On the next day, i.e. on
15.5.2003 the accused was again produced in the court. At that point
of time, the accused was given necessary warnings, cautions and
advices and the accused was specifically told that he was not bound
to give any indictable statement and he was made aware about the
consequences thereof. According to the Judicial Magistrate, despite
the warnings the accused volunteered to give his confessional
statement and then again the accused was given 3 (three) hours
time for reflection and during this period, the accused was kept in
the chamber of the Magistrate, aloof from police officers. Thereafter,
the statement was recorded at 2.30 p.m. Exhibit 12 is the said
statement.
15. In the confessional statement, the accused gave a detail
story about his enmity with the deceased. According to the accused
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he was facing eviction from the tenanted premises. He has also
narrated as to how he was harassed by the deceased. The accused
has further elaborated the story as to how he called the deceased in
his chamber and after brief argument he assaulted the deceased
with a hammer. The accused has further stated that after
hammering down the deceased he picked up a knife and rope and
went in the residence of the deceased and scuffled with the wife
and daughter of the deceased.
16. The story narrated by the accused in his confessional
statement is by and large corroborating the incident, deposed by
PWs 1 and 2. The accused is not an illiterate person to take a view
that he could not understand the consequences of making an
indictable statement. However, it is the defence case that the
statement was recorded without sufficient time for reflection. As
indicated earlier, the accused was produced in the court on
14.5.2003 and his statement was recorded in the afternoon on the
next day and during this period he remained in judicial custody.
According to the accused he had given the indictable statement out
of repentance. This fact is further corroborated by the fact of his
surrender. According to the learned defence counsel, the accused
surrendered in the court since the police officers were harassing his
family members and two sons were also arrested by the I.O. on
suspicion. However, this story, argued by the learned defence
counsel was nowhere stated in the confessional statement. The
voluntary nature of the confessional statement can also be inferred
from the statement given by the accused under Section 313 CrPC
To a question by the court the accused replied as below :-
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“This is true, Sir. It is a fact that I confessed my guilt
before the Magistrate. But, actually, I did not commit the crime.‖
17. No doubt the accused repeatedly stated before the JMFC
that he did not commit the crime and that he was innocent but the
accused did not explain as to how the dead body was found in his
chamber, why he stayed overnight in his chamber, who else could
have committed the murder and why the accused was not
interested to give any evidence in defence.
18. As regards the submission of the learned counsel that
searching questions were not put to the accused before recording
his confessional statement, which renders such statement contrary
to the Gauhati High Court circular, we are of the view that format
of recording confessional statement is only a guideline in
consonance with the spirit of Section 164 CrPC No doubt the
format has been prescribed to read the mind of the accused and to
ascertain that the indictable statement is not being given under
duress, threat or influence of any person and the guidelines should
be followed in letter and spirit. However, all and sundry infractions
or breach of the format will not render the statement as
inadmissible evidence and the conviction can be recorded on the
basis of it, so long it conforms to the statutory provision of Section
24 of the Indian Evidence Act, 1872 and does not attract or fall
within the purview of Sections 25 and 26 thereof.
19. We have carefully scanned the confessional statement of
the appellant and notice that the Judicial Magistrate took adequate
care to ascertain that the statement was not given under threat or
duress of the police officers. All the relevant queries incorporated in
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the High Court circular, which was in vogue at the relevant time,
were made in two stages, before proceeding to record the statement.
The statement is followed by a certificate that the confessions were
made voluntarily and it contains a full and true account of the
statements made by the accused. Under such circumstances, we
hold that the trial court did not commit any error in considering the
confessional statement as incriminating evidence. We are also of the
view that the confessional statement alone is sufficient to affirm the
conviction, but in addition to the said indictable statement we have
number of additional incriminating evidences, which reinforce the
confessional statement.
20. RECOVERY OF DEAD BODY
Almost all the non-official witnesses as well as the
investigating officers have deposed that after little search the
deceased was found lying in injured condition inside the chamber
of the accused. Besides this, the door of the room was also locked
from outside. PW 3 is the guard of the building. This witness has
also deposed that in between 7 a.m. to 7.30 a.m. he saw the accused
leaving the building. Soon thereafter, he heard the outcries of
daughter and wife of the deceased and they were enquiring about
their father/husband. Thereafter, PW 3 helped PWs 1 and 2 to find
out the deceased. Since the chamber of the accused was locked he
peeped through the window and saw the deceased lying by his
face, inside the chamber. Thereafter, the door was somehow opened
with the use of force only to find that the deceased was lying in
injured condition and his body was smeared with blood. Thereafter,
the deceased was taken to a private hospital, where he was declared
dead.
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21. In tandem with the testimony of PWs 1, 2 and 3, PWs 4,
5 and 7 have also deposed that the deceased was lying in injured
condition, inside the chamber of the accused.
22. When the aforesaid incriminating evidence was put to
the accused, while recording his statement under section 313 CrPC,
the accused simply replied that he was innocent and the testimonies
were false. However, no explanation was offered as to how the
deceased was found in injured condition in his chamber, which was
locked from outside. In his confessional statement also, the accused
has admitted the fact that he had assaulted the deceased with a
hammer in his chamber. In this way, the incriminating circumstance
of recovery of the dead body from inside the chamber of the
accused stands proved.
23. ENMITY
In his confessional statement the accused has given
vivid description as to how he was entertaining enmity with the
deceased. According to the accused, the deceased was hell-bent to
evict him from the tenanted premises, as he became irregular in
paying the house rent. According to the accused, he was also
receiving threat of dire consequences. Hence, he decided to spend
the previous night in his chamber itself, instead of going home. On
the next morning he called the deceased in his chamber on the
pretext of paying the rent and after brief argument he assaulted the
deceased.
23.1 According to PWs 1 and 2 also, the accused was the
tenant and he had defaulted in paying the house rent and electricity
bill. According to PW 2, on the relevant morning the accused called
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her husband into his chamber and the witness saw this from the
window. This deposition corroborates the accused‟s version that he
called the deceased in his chamber on the pretext of paying rent.
23.2 During the course of investigation the investigating
officer (PW 14) had seized one rent receipt book, which shows that
although rent receipts for the months of January, February and
March were prepared in the name of the accused but the rents were
not paid till then. Drawing our attention to the deposition of I.O.
Shri Singh, the learned counsel for the appellant submitted that
there is no evidence of payment of the rent on the date of the
incident then how come the money receipt book was found in the
place of occurrence. The doubt of the appellant‟s counsel can be
repelled from the seizure memo itself, wherein it has been
mentioned that the rent receipt book was produced by PW 2 to the
IO to substantiate the fact of rent due from the accused. In this way
it is not the case of the prosecution that the receipt book was seized
by the I.O. from the chamber of the accused. Be that as it may, the
receipt book contain money receipts of January, February and
March, 2003 and as per the seizure memo payments were still due.
We are also of the view that the controversy regarding payment of
rent should not detain us since the accused/appellant has admitted
in his confessional statement about enmity with the deceased for
non-payment of rent and threat of eviction and that of dire
consequences. For all these reasons, this incriminating evidence also
stands proved.
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24. RECOVERY OF HAMMER
The prosecution is also relying upon the evidence of
recovery of a “hammer”, allegedly at the instance of the accused. It
is the prosecution case that as per the opinion of the doctor the
death was caused due to ante-mortem lacerated injuries, which
might have been caused by a blunt weapon. Besides this the
prosecution is also relying upon the confessional statement in this
regard, wherein the accused has also confessed that he hit the
deceased on his forehead with a hammer. According to the learned
Public Prosecutor when the evidence of recovery of hammer from
the spot at the instance of the accused was put to the appellant he
did not deny the said fact.
25. On the other hand, the learned counsel for the appellant
submitted that the recovery was hit by Section 27 of the Evidence
Act inasmuch as before taking the accused to the place of recovery
the investigating officer did not record his statement. In support of
his submission, the learned counsel relied upon the judgment of
this court rendered in the case of Deoraj Goala and Anr. –vs- State
of Assam; (2011) 2 GLR (NOC) 1. In this case adverse interference
against the prosecution was taken along with other circumstances.
26. Section 27 of the Evidence Act is considered to be an
exception to Sections 25 and 26. Section 25 stipulates that no
confession made to a Police Officer can be proved against an
accused. Section 26 is also an identical provision. However, certain
information received from an accused during investigation and
which ultimately leads to recovery of certain facts would be
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admissible in evidence U/s 27 of the Evidence Act. For ready
reference, Section 27 is reproduced below:
“27. How much of information received from accused may
be proved.— Provided that, when any fact is deposed to as
discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much
of such information, whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may be
proved.‖
26.1. A bare reading of Section 27 shows that only one
condition is mandatory before taking into consideration the
recovery of any material evidence of the offence at the instance of
the accused is that the accused must be in the custody of a Police
Officer. Section 27 of the Evidence Act nowhere stipulates formal
recording of a statement and that too bearing the signature of the
accused. In the case of Swami Sraddhananda –Vs- State of
Karnataka; (2007) 12 SCC 210, the Hon‟ble Supreme Court has
observed as below:
―36. We have noticed hereinbefore as to why the
investigation was taken over by the Central Crime Branch. As
the interrogation of the appellant, while in custody of the police,
revealed the possibility of the deceased having been buried in the
backyard of her residential house, the Investigating Officer
requested the Sub-Divisional Magistrate to conduct exhumation
proceedings, who in turn, authorized the Taluka Executive
Magistrate (PW-3) to do so. Confession of the accused was not
admissible in evidence. What was admissible only was that part
of the confession leading to the discovery of fact in terms of
Section 27 of the Indian Evidence Act………..‖
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26.2 Very recently, a Full Bench of the Gauhati High Court ,
in the case of Rajiv Phukan -Vs- State of Assam; (2010 Cri LJ 338)
was called upon to examine the legal issue whether- “a disclosure
statement need to be reduced into writing in order to make such
statement admissible in evidence under Section 27 of the Evidence
Act”. After detailed examination of law and various authorities of
the Apex Court Their Lordships came to a conclusion that reducing
the information of the accused into writing is not a statutory
prescription, though as a matter of prudence and precaution, to
make the recovery fool-proof and legally admissible, it is advisable
to record such recovery statement. We are also of the view that non-
recording of any such statement will not deal a fatal blow upon the
prosecution case. The relevant observations of the Full Bench are
reproduced below:
―(28)…………When the statute has not made it
mandatory for a police officer to reduce into writing the
disclosure statement of an accused person, it would be impossible
to treat the evidence of the co-villagers as inadmissible and
thereby reject the same. The written record of the disclosure
statement is really required for the purpose of inspiring
confidence of the Court that the statement, as deposed to, had
indeed been made and such a written record would further help
the Court know as to what exactly the accused had stated to the
police and what statement or which part of a given statement of
the accused had really led to the discovery of the fact.
(56) Because of what have been discussed and pointed out above,
we conclude that a 'disclosure statement', to be admissible under
Section 27 of the Evidence Act, is not statutorily required to be
reduced into writing, though prudence demands that such an
information should be reduced into writing in order to enable the
Court to know exactly as to what the accused is allegedly to
CRIMINAL APPEAL NO. 61 (J) /05 Page 20 of 34
have stated and the extent to which the information given by him
is admissible. The reference shall stand answered accordingly.‖
27. In the case before us the fact of recovery at the instance
of the accused was not disputed by the accused, while giving his
statement under section 313 CrPC. On the other hand, PW 11 has
deposed that the accused had accompanied the police officers at the
time of recovery of the hammer. This witness was not cross
examined by the defence to dispute the fact of recovery of the
weapon, on being led by the accused. Even the investigating officer
was also not confronted about any infirmity in the recovery of the
hammer. Under such circumstances we are persuaded to take into
consideration the recovery of the hammer as well an incriminating
evidence.
28. ABSCONDENCE
Admittedly, the offences were committed on 22.4.2003
and the accused surrendered in the court only on 7.5.2003.
According to watchman (PW 2), just before the incident he had seen
the accused leaving the building. The accused has also admitted in
his confessional statement that on the previous night he
intentionally did not go home and stayed back in his chamber.
From this evidence it is abundantly clear that the accused
absconded from the scene till his surrender. Had the accused was
not involved in the crime he would have certainly visited the place
of occurrence, as few other tenants did, to ascertain the cause of the
death of the owner of his tenanted premise. PW 9 has also deposed
that he accompanied the police officers to the house of the accused
but he was found untraceable. In the cross examination this
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incriminating evidence was not disputed or explained. Strangely,
neither the investigating officer was given any suggestion in the
cross examination that the accused was very much available in his
house nor the accused also gave any evidence to dispute the
allegation of his abscondence. The fact of absconding of an accused,
though weak evidence in itself, can also be taken as an adverse and
incriminating circumstance U/s 8 of the Evidence Act to reinforce
other circumstances available in the case and proved by the
prosecution. In this regard one may refer to the judgment of the
Apex Court rendered in the case between Dhananjoy Chatterjee @
Dhana Vs. State of West Bengal; reported in (1994) 2 SCC 220.
29. CIRCUMSTANTIAL EVIDENCE
Law of circumstantial evidence is time tested. It is the
settled position of law in the criminal jurisprudence that there is no
rule of evidence that a conviction cannot be recorded on the basis of
circumstantial evidence. However, the primary requirement of law,
before acting upon circumstantial evidences is that the
circumstances must form a complete chain, consistent with the guilt
of the accused, sans any other theory. The law was initially
expounded in the case of Hanumant Govind Nargundkar -Vs- State
of Madhya Pradesh (AIR 1952 SC 343) in this way:
"It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should be in the first instance
be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be
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a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human
probability the act must have been done by the accused."
29.1 The guidelines given by the Apex Court for acting on
circumstantial evidence in the aforesaid case was further amplified
in the case of Sharad Birdhichand Sarda v. State of Maharashtra
(AIR 1984 SC 1622): (1984) 4 SCC 116. The golden principles of the
doctrine of circumstantial evidence, as enunciated in the above case,
are reproduced below:
―153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‗must or should‘ and not ‗may be‘
established. There is not only a grammatical but a legal
distinction between ‗may be proved‘ and ‗must be or should be
proved‘ as was held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra, where the following observations were
made.
‗Certainly it is a primary principle that the accused must
be and not merely may be guilty before a Court can convict and
the mental distance between ―may be‖ and ― must be‖ is long and
divides vague conjectures from sure conclusions.‘
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
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(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so compete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.‖
29.2 Without burdening this judgment about the legal
principle of recording conviction on the basis of incriminating
circumstances, we would like to refer to the observations made by
the Apex Court in the case G Parshwanath –Vs- State of
Karnataka, reported in (2010) 8 SCC 593, which are as below:
―23. In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each fact
sought to be relied upon must be proved individually. However,
in applying this principle a distinction must be made between
facts called primary or basic on the one hand and inference of
facts to be drawn from them on the other. In regard to proof of
primary facts, the court has to judge the evidence and decide
whether that evidence proves a particular fact and if that fact is
proved, the question whether that fact leads to an inference of
guilt of the accused person should be considered. In dealing with
this aspect of the problem, the doctrine of benefit of doubt
applies. Although there should not be any missing links in the
case, yet it is not essential that each of the links must appear on
the surface of the evidence adduced and some of these links may
have to be inferred from the proved facts. In drawing these
inferences, the court must have regard to the common course of
natural events and to human conduct and their relations to the
facts of the particular case. The court thereafter has to consider
the effect of proved facts.‖
CRIMINAL APPEAL NO. 61 (J) /05 Page 24 of 34
30. In the case before us, the incriminating circumstances
are being considered only as additional evidence to lend support to
the confessional statement of the accused/appellant. In our
considered opinion, the confessional statement is self-sufficient to
affirm the conviction, as it does not suffer from any patent illegality.
On the other hand, the same is consistent with the oral testimony of
the witnesses. Hence, we find no hesitation to further hold that the
conviction can be affirmed either on the basis of confessional
statement independently or on the basis of circumstantial
evidences. After scanning the entire evidence on record we agree
with the learned trial judge that the offences of murder and criminal
trespass were committed by the accused/appellant and non-else.
31. The next question posed for our consideration was
whether the accused had the intention to commit murder. The
offence of culpable homicide has been defined in Sec.299, whereas
the offence of murder has been defined in Sec.300 IPC. The gravity
with which the offence is perpetrated is the basic distinction in
between the above two offences. In other words, to bring home the
offence within the mischief of Sec.300, the prosecution has to
establish that the offender had committed the act of culpable
homicide with definite intention or that the offender had the
intention to cause such bodily injury which was likely to cause the
death of the person or knowing that the injuries, he was inflicting,
would be eminently dangerous to the life. It is difficult to get direct
evidence about the intention and knowledge of the assailant. These
ingredients of law have to be inferred from certain circumstances,
like the weapon used in the crime, circumstances under which the
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crime was committed, number of wounds inflicted upon the
deceased, situs of the wound etc.
32. In the case at hand the foremost evidence to hold that
the deceased was assaulted to death with clear intention lies in the
fact that on the previous night of the incident the accused had
intentionally stayed back in his chamber, instead of going home.
Had the incident taken place during the normal working hours a
view could have been taken that the deceased must have picked-up
the quarrel with the accused and provoked him for the assault.
However, the incident took place in the early morning, which is
consistent with the prosecution story that it was the accused who
had invited the deceased in his chamber and then assaulted him.
Besides this, as per the medical evidence as many as eight numbers
of lacerated wounds on the forehead and temporal region of the
deceased were inflicted upon the deceased with a blunt object,
which according to the prosecution was a hammer. The number of
assaults, situs of the wounds and the nature of the weapon used in
the assault clearly demonstrates the intention of the appellant to kill
the deceased. Hence, we find no difficulty to hold that the offence of
culpable homicide falls under clause firstly to section 300 of the
Indian Penal Code, which is punishable under Section 302.
33. Before concluding the Judgment, we would also like to
make certain observations regarding the mode and method of
recording statements of accused persons under Section 313 of the
Code of Criminal Procedure, 1973. It has been noticed that the
Judicial Magistrates and the Sessions Judges either record such
statements in a perfunctory manner or sometime they delegate this
CRIMINAL APPEAL NO. 61 (J) /05 Page 26 of 34
power to the „Peshkars‟, without realising the importance, object
and sanctity thereof. Many times, the trial Judges formulate lengthy
questions, as in the instant case, mixing up various incriminating
evidences in one question. Large numbers of judicial officers are in
the habit of framing witness-wise questions. It is not advisable
because a particular witness may speak about a number of
incriminating circumstances. If one question is prepared for a
particular witness it may include several circumstances, and, if such
question is put to an accused it will be difficult for the accused to
give a precise answer. Sometime, minor incriminating
circumstances are not put to the accused persons, considering them
to be unnecessary, unmindful of their relevance from the view point
of accused and the appellate courts. Similarly, many trial Court
Judges neither feel it essential to give an opportunity to the accused
persons to offer their defence story, other than giving answer to the
pointed questions nor the accused are even asked whether they
intend to give evidence in defence, although clause (b) to sub-sec (1)
to Sec 313 postulates general questioning to the accused.
33. Before adverting to the objectives of Sec. 313 CrPC and
the intention of the legislature to have such a provision in adversary
system of criminal trials, it is advisable to reproduce Section 313 in
extenso, which runs as below:
―313. Power to examine the accused.—(1) In every inquiry or
trial, for the purpose of enabling the accused personally to
explain any circumstances appearing in the evidence against him,
the court—
(a) may at any stage, without previously warning the accused,
put such questions to him as the court considers necessary;
CRIMINAL APPEAL NO. 61 (J) /05 Page 27 of 34
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question him
generally on the case:
Provided that in a summons case, where the court has
dispensed with the personal attendance of the accused, it may
also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is
examined under sub-section (1).
(3) The accused shall not render himself liable to punishment
by refusing to answer such questions, or by giving false answers
to them.
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has
committed.‖
34. The very purpose of introducing Section 313 in the
scheme of criminal trial is to afford an opportunity to the accused
personally and that too, without administering any oath to explain
the circumstances, appearing against him/her during the trial. The
questioning need not be confined to the inculpatory evidence alone,
since the law has employed the words „any circumstances‟ in sub-
sec (1). Besides this, relevance and significance of Sub-Section (4) to
Section 313 also cannot be lost sight of, inasmuch as, admissions
and confessions made by an accused in the said statement can be
given due weightage and considered along with other admissible
evidence. There is a catena of judicial pronouncements highlighting
the usefulness of these statements and as to how it empowers the
Courts to take into consideration the answers given by the accused.
In a number of judgments, it has also been held that false answers
given by an accused in his statement, given under Section 313 CrPC,
CRIMINAL APPEAL NO. 61 (J) /05 Page 28 of 34
can also be counted as providing a missing link in the prosecution
case.
34.1 For the sake of brevity, we would like to quote only a
few trend-setting judgments from the Hon‟ble Supreme Court.
34.2 Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740:
―18. What is the object of examination of an accused under
Section 313 of the Code? The section itself declares the object in
explicit language that it is ―for the purpose of enabling the
accused personally to explain any circumstances appearing in the
evidence against him‖. In Jai Dev v. State of Punjab
Gajendragadkar, J. (as he then was) speaking for a three-Judge
Bench has focussed on the ultimate test in determining whether
the provision has been fairly complied with. He observed thus:
―The ultimate test in determining whether or not the
accused has been fairly examined under Section 342 would be to
inquire whether, having regard to all the questions put to him, he
did get an opportunity to say what he wanted to say in respect of
prosecution case against him. If it appears that the examination
of the accused person was defective and thereby a prejudice has
been caused to him, that would no doubt be a serious infirmity.‖
19. Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to benefit the
court in reaching the final conclusion.
20. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word ―may‖ in
clause (a) of sub-section (1) in Section 313 of the Code indicates,
without any doubt, that even if the court does not put any
question under that clause the accused cannot raise any grievance
CRIMINAL APPEAL NO. 61 (J) /05 Page 29 of 34
for it. But if the court fails to put the needed question under
clause (b) of the sub-section it would result in a handicap to the
accused and he can legitimately claim that no evidence, without
affording him the opportunity to explain, can be used against
him. It is now well settled that a circumstance about which the
accused was not asked to explain cannot be used against him.‖
34.3 Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1:
―10. The questioning of the accused is done to enable him
to give an opportunity to explain any circumstances which have
come out in the evidence against him. It may be noticed that the
entire evidence is recorded in his presence and he is given full
opportunity to cross-examine each and every witness examined
on the prosecution side. He is given copies of all documents
which are sought to be relied on by the prosecution. Apart from
all these, as part of fair trial the accused is given opportunity to
give his explanation regarding the evidence adduced by the
prosecution. However, it is not necessary that the entire
prosecution evidence need be put to him and answers elicited
from the accused. If there were circumstances in the evidence
which are adverse to the accused and his explanation would help
the court in evaluating the evidence properly, the court should
bring the same to the notice of the accused to enable him to give
any explanation or answers for such adverse circumstance in the
evidence. Generally, composite questions shall not be asked to
the accused bundling so many facts together. Questions must be
such that any reasonable person in the position of the accused
may be in a position to give rational explanation to the questions
as had been asked. There shall not be failure of justice on account
of an unfair trial.‖
34.4 Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 :
―32. Following the law laid down in Narain Singh case the
Apex Court in State of Maharashtra v. Sukhdev Singh further
CRIMINAL APPEAL NO. 61 (J) /05 Page 30 of 34
dealt with the question whether a statement recorded under
Section 313 CrPC can constitute the sole basis for conviction and
recorded a finding that the answers given by the accused in
response to his examination under Section 313 CrPC of 1973 can
be taken into consideration in such an inquiry or trial though
such a statement strictly is not evidence and observed in para 52
thus: (Sukhdev Singh case)
―52. Even on first principle we see no reason why the court
could not act on the admission or confession made by the accused
in the course of the trial or in his statement recorded under
Section 313 of the Code.‖
It is thus well established in law that admission or
confession of the accused in the statement under Section 313
CrPC recorded in the course of trial can be acted upon and the
court can rely on these confessions to proceed to convict him.‖
34.5 Ashok Kumar v. State of Haryana, (2010) 12 SCC 350:
―29. Now we may proceed to discuss the evidence led by
the prosecution in the present case. In order to bring the issues
raised, within a narrow compass we may refer to the statement
of the accused made under Section 313 CrPC. It is a settled
principle of law that dual purpose is sought to be achieved when
the courts comply with the mandatory requirement of recording
the statement of an accused under this provision. Firstly, every
material piece of evidence which the prosecution proposes to use
against the accused should be put to him in clear terms and
secondly, the accused should have a fair chance to give his
explanation in relation to that evidence as well as his own
versions with regard to alleged involvement in the crime. This
dual purpose has to be achieved in the interest of the proper
administration of criminal justice and in accordance with the
provisions of CrPC. Furthermore, the statement under Section 313
CrPC can be used by the Court insofar as it corroborates the case
CRIMINAL APPEAL NO. 61 (J) /05 Page 31 of 34
of the prosecution. Of course, conviction per se cannot be based
upon the statement under Section 313 CrPC.
30. Let us examine the essential features of this section and
the principles of law as enunciated by the judgments of this
Court, which are the guiding factor for proper application and
consequences which shall flow from the provisions of Section 313
CrPC. As already noticed, the object of recording the statement of
the accused under Section 313 CrPC is to put all incriminating
evidence to the accused so as to provide him an opportunity to
explain such incriminating circumstances appearing against him
in the evidence of the prosecution. At the same time, also permit
him to put forward his own version or reasons, if he so chooses,
in relation to his involvement or otherwise in the crime.
31. The Court has been empowered to examine the accused
but only after the prosecution evidence has been concluded. It is a
mandatory obligation upon the Court and besides ensuring the
compliance thereof, the Court has to keep in mind that the
accused gets a fair chance to explain his conduct. The option lies
with the accused to maintain silence coupled with simpliciter
denial or, in the alternative, to explain his version and reasons,
for his alleged involvement in the commission of crime. This is
the statement which the accused makes without fear or right of
the other party to cross-examine him. However, if the statements
made are false, the Court is entitled to draw adverse inferences
and pass consequential orders, as may be called for, in
accordance with law. The primary purpose is to establish a direct
dialogue between the Court and the accused and to put every
important incriminating piece of evidence to the accused and
grant him an opportunity to answer and explain. Once such a
statement is recorded, the next question that has to be considered
by the Court is to what extent and consequences such statement
can be used during the enquiry and the trial. Over the period of
time, the courts have explained this concept and now it has
CRIMINAL APPEAL NO. 61 (J) /05 Page 32 of 34
attained, more or less, certainty in the field of criminal
jurisprudence.
32. The statement of the accused can be used to test the
veracity of the exculpatory part of the admission, if any, made by
the accused. It can be taken into consideration in any, enquiry or
trial but still it is not strictly an evidence in the case. The
provisions of Section 313(4) CrPC explicitly provides that the
answers given by the accused may be taken into consideration in
such enquiry or trial and put in as evidence for or against the
accused in any other enquiry or trial for any other offence for
which, such answers may tend to show he has committed. In
other words, the use of a statement under Section 313 CrPC as an
evidence is permissible as per the provisions of the Code but has
its own limitations. The Courts may rely on a portion of the
statement of the accused and find him guilty in consideration of
the other evidence against him led by the prosecution, however,
such statements made under this section should not be considered
in isolation but in conjunction with evidence adduced by the
prosecution.‖
35. Keeping in mind the salutary objects behind recording
the statements of accused under Section 313 CrPC and also noticing
random infraction thereof by the trial Courts, we hereby direct the
subordinate/trial Courts to adhere to the requirements of the
Section. Some of the illustrative guidelines are given below:
(i) The statements should be scrupulously written/
dictated by the trial Magistrates and Sessions Judges
themselves. This power should not be delegated to the
„Peshkars‟ or any other person, even partly.
(ii) While recording such statements, the trial Judges
should not allow either the Public Prosecutors or the
CRIMINAL APPEAL NO. 61 (J) /05 Page 33 of 34
defence lawyers to interfere in the proceeding, except
under compelling circumstances.
(iii) The questions should be precise and in simple
language, which can be understood by the accused
easily and can be answered without difficulty.
(iv) For every incriminating circumstance there should
be a separate question. Two or more circumstances
should not be clubbed together.
(v) No circumstance, whatsoever nature, should be left
out from the questionnaire.
(vi) Full particulars of the accused, like his
father‟s/mother‟s name etc, ordinary and permanent
place of residence, age, occupation and income, if any,
should invariably be recorded.
(vii) In addition to mentioning the number of the case
in the top of the statement, the Magistrate/Judge should
also state his/her name in the statement.
(viii) If the accused appears to be juvenile or claims to be
so, the trial Magistrate/Judge shall make an enquiry as
required under the Juvenile Justice (Care and Protection
of Children) Act, 2000, and rules framed there under
and proceed accordingly.
36. The Registry is directed to place the Judgment before
the Hon‟ble Chief Justice in his administrative side to consider
issuance of a new format of the statement under Section 313 of the
Code of Criminal Procedure, 1973.
CRIMINAL APPEAL NO. 61 (J) /05 Page 34 of 34
37. In the result, the appeal stands dismissed. The
conviction of the appellant under Sections 302 and 448 of the Indian
Penal Code are hereby affirmed. We also do not see any reason to
interfere with the sentences. Consequently, the sentences awarded
by the trial court are also hereby affirmed.
38. Shri B.K.Singh, learned amicus curiae, shall be entitled
to a fee of Rs.7,500/- (Rupees seven thousand five hundred)only for
rendering his valuable legal assistance on behalf of the appellant.
The fee shall be paid from Legal-aid fund.
JUDGE CHIEF JUSTICE
Sushil/dtg