Orissa High Court
Govinda Chandra Chinera vs State Of Orissa on 14 September, 2001
Equivalent citations: 2001(II)OLR447
Author: L. Mohapatra
Bench: B. Panigrahi, L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The appellant having been convicted for offences committed Under Sections 302/201 of the Penal Code, has preferred this appeal.
2. Case of the prosecution is that deceased is the wife of the appellant and they were residing in their own house along with their three sons Ramesh Chandra Ghinera (PW 1), Pradip Kumar Chinera (PW 2) and another in village Hajsunakhala. The appellant suspected his wife to be involved in extra-marital relationship for which he was ill-treating her. In the night of occurrence the appellant, deceased and their sons went to bed as usual and early in the morning the dead body of the deceased was found on her bed. Brother of the appellant Madah Mohan Chinera who was also residing in the same village on getting information about death of the deceased, came to the house of the appellant and being suspicious about the cause of death the matter was reported in Bankoi Out Post and a U.D. case was registered. PW 8 took over charge of investigation whereafter same was handed over to PW 9, Circle Inspector of Police, Khurda. After completion of investigation, charge-sheet was submitted for offences alleged to have been committed Under Sections 302/201 of the Penal Code and the appellant faced the trial.
3. The plea of the appellant is complete denial of his involvement in the alleged offences and the appellant retracted his confession said to have been; made by him before the learned Magistrate Under Section 164 of the Code of Criminal Procedure. He further stated in his statement recorded Under Section 313, Cr.P.C. that he was forced to make such a confession before the learned Magistrate.
4. Learned Additional Sessions Judge solely on the basis of the judicial confession convicted the appellant and sentenced him to undergo rigorous imprisonment for life for conviction Under Section 302 of the Penal Code and rigorous imprisonment for three years for conviction Under Section 201 of the Penal Code.
5. Learned counsel appearing for the appellant has challenged the judgment mainly on two grounds :
(1) The Magistrate before whom/the appellant is supposed to have made a confession has not been examined and therefore, the confession cannot be accepted. He further argued that the requirements as envisaged in law before recording confession have not been followed by the learned Magistrate which necessiated his examination and time for reflection was never allowed to the appellant to decide as to whether he should make a confession or not.
(2) The confession having been retracted, the Court should have looked for some corroboration from other sources and in absence of any corroboration the learned Additional Sessions Judge could not have convicted the appellant solely on the basis of retracted judicial confession.
6. So far as the first ground taken by the learned counsel for appellant is concerned it is required to look into the confessional statement to find out as to whether proper procedure has been adopted by the learned Magistrate while recording confession or not. Ext. 6 is the confessional statement of the appellant. From the said document it appears that the appellant was produced before the learned Magistrate by the C.S.I. Referring to the said endorsement in the confessional statement it was argued by the learned counsel for appellant that the appellant had not been kept out of police influence before the confessional statement was recorded. We are not able to accept such a contention as the Court has to see whether before recording the confessional statement the accused was kept out of police influence or not, and if the accused had been given time for reflection in absence of influence of any source, merely because he was produced before the Magistrate by the C.S.I., the confessional statement cannot be ignored. From the confessional statement we find that required questions as envisaged under law had been asked to the appellant and the appellant confessed stating that his wife was having physical relationship with others and in spite of protest made by the appellant she did not listen and therefore, on the date of occurrence early in the morning he killed her by throttling her neck. We do not agree with the contention of the learned counsel for appellant that the required procedure was not adopted before recording the confession.
7. Coming to the next contention with regard to acceptance of the judicial confession, it is worthwhile to refer to a decision of this Court reported in 1986 (II) OLR 514 : Ganesh Prasad Singh v. State of Orissa. Relying on an earlier decision of this Court reported in 26 (1960) CLT 14 Daman Mohanta v. The State, the Court in the facts of the case held that 48 hours in jail custody cannot be held to be a ground to say that the accused had been given time for the reflection before recording of the judicial confession. This Court in the case of Daman Mohanta (supra) observed as follows :
"It is desirable that on the date on which a confession is recorded the accused is given some more time for reflection by being allowed to sit in a corner of the Court room after the usual caution is given. This is irrespective of the time of reflection allowed to him when he is remanded to jail custody after his production before a Magistrate. The necessity for thus giving him further time for reflection arises mainly because the accused is produced in Court from jail, in the custody of police constables and some further time should be given to remove all traces of any influence that might have been produced in the mind of the accused when he was marched in police custody from the jail to the Court room."
In another decision of this Court reported in 1977 CLR 176 (F.B) : Satyabhama Debi v. Tauli Jena, this Court has laid down the essential principles with regard to acceptance of judicial confession :
"The essential principles are :
(i) Under Anglo Saxon jurisprudence, the whole burden to establish the charge in a criminal offence lies on the prosecution. Where the prosecution relies upon a confessional statement of the accused in proof of the charge, strict compliance with provisions of Section 164 of the Code of Criminal Procedure is imperative. .
(ii) It is essential that the Magistrate before recording the confessional statement must explain to the confessing accused that he is not bound to make a confession and that if he makes a confession it may be used as evidence against him. The Magistrate should also question the accused with a view to ascertaining whether the accused is making the confession voluntarily and on such questioning he should have reason to believe that the confession is being made voluntarily;
(iii) Where there is substantial compliance with the requirements of Section 164(3) of the Code of Criminal Procedure, reliance can be placed on the provisions of Sections 29 and 80 of the Evidence Act and any non-compliance with the provisions of Section 164 of the Code of Criminal Procedure may be regularised by application of Section 533 of that Code;
(iv) The bare certificate in the prescribed form with nothing more would not satisfy the requirements of Section 164 of the Code. A mere failure, however, to record all the questions put to the confessing accused does not necessarily entail the rejection of the confession as inadmissible. As long as there is substantial compliance evidence aliunde is available to conver the lacunae and the recording Magistrate may be examined in support of the compliance of the formalities.
(v) Whether a confession has been properly recorded or not must be left to be decided by the Judge before whom it is tendered as evidence and admissibility would ordinarily depend upon several facts in a given case and it would not be appropriate to lay down any hard and fast rule regulating admissibility."
(Quoted from the head-note) In the case of Ganesh Prasad Singh (supra) relying upon the aforesaid two decisions, this Court observed that before recording a confessional statement the Magistrate should take care to see that the accused is kept out of police surveillance for a reasonable time and sufficient time should be allowed for cool reflection. What time would be just and proper will depend on facts of each case.
8. Now the question to be decided is as to whether the time allowed by the learned Magistrate is sufficient or not. PW 9. the Investigating Officer in cross-examination has stated that the accused was under watch from 24.4.1993 and he was formally arrested on 26.4.1993. From the statement of the accused recorded Under Section 313, Cr.P.C. it appears that the appellant was assaulted in the police station and was threatened to make the confession before the learned Magistrate. It appears from the evidence that the appellant was under police surveillance from 24th to 26th April, 1993 and was produced before the Magistrate on 26th April, 1993. On 26th April, 1993 the accused was remanded to jail custody and in early morning on the next day. i.e. 27th April, 1993 he was produced before the learned Magistrate for recording of confessional statement. Since the appellant had been under police surveillance for almost three days and was produced before the Magistrate on the next day for recording of judicial confession, we are of the view that the learned Magistrate should have granted some more time for cool reflection.
9. The learned counsel for appellant has taken a further ground that the learned Magistrate who recorded the judicial confession having not been examined, the confession should not be accepted. In this connection a decision of the Apex Court reported in AIR 1981 Supreme Court 1165; Madi Ganga v. State of Orissa he referred to, where it has been held as follows :
"Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorises the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance 1 with law.
Where the Magistrate had put to the accused all the necessary questions to satisfy himself that the confession was voluntary and, he had also appended the necessary certificate, it could be rightly acted upon without examining the Magistrate in absence of any circumstance justifying the calling of the Magistrate as a witness."
(Quoted from head-note) In view of what has been decided by the Apex Court as quoted above, and in view of the language of Section 80 of the Evidence Act, we do not find any necessity of the Magistrate being examined and the Court can always presume that the document is genuine and that any statement as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law.
10. Coming to the second ground of challenge it is clear from the materials on record that there is absolutely no corroborating evidence in support of the confessional statement. There is no dispute that the judicial confession said to have been made before the learned Magistrate has been retracted by the appellant in his examination Under Section 313, Cr.P.C. Law is well settled that a conviction can be based only on judicial confession if it is found to be voluntary and true. But in case of retracted judicial confession as a matter of prudence the Courts ordinarily look for corroboration from other sources. In this connection also reliance can be placed on the case of Ganesh Prasad Singh (supra). This Court in the aforesaid decision has also observed that it is an accepted rule of prudence that retracted confession is always open to suspicion and should not be acted upon unless it is corroborated by credible independent evidence. It is true that corroboration need not be in respect of each and every circumstance mentioned in the confessional statement. But it is the duty of the Judge to find out whether there is at least general corroboration in some material particulars to a retracted confession. On perusal of the entire evidence on record, we do not find any material whatsoever to corroborate the confession alleged to have been made by the appellant.
11. Having held that sufficient time for reflection had not been given to the appellant, under the circumstances stated above, and that there is no corroboration from any source, we are unable to accept the judicial confession and sustain the order of conviction. The appeal is accordingly allowed. The judgment and order of the trial Court are set aside. The appellant be set at liberty forthwith if his detention is not required in any other case.
B. Panigrahi, J.
12. I agree.