Gauhati High Court
Abdul Hakim Quadri vs The State Of Assam on 5 September, 2011
Bench: Madan B. Lokur, Bd Agarwal
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
PRESENT
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 CRIMINAL APPEAL NO. 61 (J) /05 Page 1 of 34 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.CRIMINAL APPEAL NO. 61 (J) /05 Page 2 of 34
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.
CRIMINAL APPEAL NO. 61 (J) /05 Page 3 of 34The 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 4 of 34 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:-
CRIMINAL APPEAL NO. 61 (J) /05 Page 5 of 34(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:-
CRIMINAL APPEAL NO. 61 (J) /05 Page 6 of 34―..........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 CRIMINAL APPEAL NO. 61 (J) /05 Page 7 of 34 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 8 of 34 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 :-
CRIMINAL APPEAL NO. 61 (J) /05 Page 9 of 3413.1 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.‖ CRIMINAL APPEAL NO. 61 (J) /05 Page 10 of 34 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 11 of 34 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 :-
CRIMINAL APPEAL NO. 61 (J) /05 Page 12 of 34"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 CRIMINAL APPEAL NO. 61 (J) /05 Page 13 of 34 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.CRIMINAL APPEAL NO. 61 (J) /05 Page 14 of 34
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 CRIMINAL APPEAL NO. 61 (J) /05 Page 15 of 34 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.CRIMINAL APPEAL NO. 61 (J) /05 Page 16 of 34
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 CRIMINAL APPEAL NO. 61 (J) /05 Page 17 of 34 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...........‖ CRIMINAL APPEAL NO. 61 (J) /05 Page 18 of 34 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 19 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 20 of 34 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 21 of 34 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, CRIMINAL APPEAL NO. 61 (J) /05 Page 22 of 34 (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 23 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 CRIMINAL APPEAL NO. 61 (J) /05 Page 24 of 34 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 of 3437. 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
CRIMINAL APPEAL NO. 61 (J) /05 Page 34 of 34