Gauhati High Court
Sri Ram Tossa vs The State Of Assam on 24 May, 2012
Author: I.A. Ansari
Bench: I.A. Ansari
Page 1
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA: MIZORAM & ARUNACHAL PRADESH
CRIMINAL APPEAL NO. 147 (J) OF 2005
Sri Ram Tossa
- Appellant
-Versus-
The State of Assam
- Respondent
BEFORE THE HON'BLR MR.JUSTICE I.A. ANSARI THE HON'BLR MR.JUSTICE AC UPADHYAY For the appellant : Mrs. Minakshi Bujar Baruah, Amicus Curiae.
For the respondents : Mr. Z Kamar, Public Prosecutor, Assam.
Date of hearing : 04-05-2012
Date of Judgment : 24.05.2012
JUDGEMENT AND ORDER
(Ansari, J)
This appeal, preferred by the appellant, Ram Tossa, puts to challenge the judgment and order, dated 28-10-2005, passed by the learned 1st Additional Sessions Judge, Sivasagar, whereby the present appellant, namely, Ram Tossa, and one Petu Goala, stand convicted under Section 302 read with Section 34 IPC and sentenced to suffer imprisonment for life and pay fine of Rs. 5,000/- each and, in default of payment of fine, suffer rigorous imprisonment for six months each. Crl. A. 147 (J) of 2005 Page 2
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
(i) The present appellant's father, late Jugen Tossa, was killed by Phani Misir and Babul Barua about 10/11 years before the day of the present occurrence, which has given rise to this appeal. At the time of his father's death, the present appellant was a young boy. When he grew up, his co-villagers informed him that Phani Misir had been telling around the village that he would kill Ram Tossa (i.e., the present appellant), too.
This instilled fear in the heart of the appellant and one day, the present appellant, Ram Tossa, told his friend, who became the co-accused, namely, Petu Goala, that Phani Misir must be killed or else, Phani would, some day, kill him (Ram Tossa).
(ii) One day, when Phani Misir happened to meet the present appellant, Ram Tossa, in Phani's labour line, he told the present appellant not to loiter around the said labour line and threatened him by saying that if the present appellant did so, he would be finished in the same way as his father was finished. From that day, the present appellant never went to the labour line of Phani Misir.
(iii) On 16-07-1998, the present appellant, Ram Tossa, and the co- accused, Petu Goala (who has not preferred any appeal), came to nursery and started cutting firewood stealthily. When they were so cutting the firewood at about 7 pm, they heard Phani Misir going towards his home from the side of the village of the present appellant singing some songs. On hearing Phani singing, the appellant told his co-accused, Petu Goala, to catch Phani. The two of them, then, came out of the garden and they Crl. A. 147 (J) of 2005 Page 3 confronted Phani on the middle of the road. Petu kicked Phani on his face and Phani fell down. The present appellant, Ram Tossa, then, dealt blows with axe, which he was holding in his hand, on the neck of Phani and other parts of his body. When they found that Phani had died, they left Phani on the road itself carrying the axe with them.
(iv) The present appellant, Ram Tossa, accompanied by co- accused, Petu Goala, then, came to Sonari Police Station at 10.30 pm and informed the police about the incident and handed over the axe to a police officer there. The axe, so produced, was seized and GD Entry No. 408, dated 16-07-1998, was made in this regard. The police, then, arrested the present appellant and the co-accused, Petu Goala, and, on being entrusted with the investigation, the investigating officer (PW11) came to the place of occurrence and, having found Phani's dead body lying there, held inquest thereon, prepared, in this regard, an inquest report (Ext.2). A sketch map (Ext.4) too was drawn. Thereafter, Phani's father lodged a written Ejahar (Ext.1), on 17-09-1998, at 9 am. Treating the said Ejahar as First Information Report, a case was, formally, registered against the present appellant, Ram Tossa, and co-accused, Petu Goala, under Section 302/34 IPC. During the course of investigation, post mortem examination was held on the said dead body. The two accused were forwarded to the Magistrate and both of them made confessional statements, which were separately recorded. On completion of investigation, police laid charge- sheet (Ext.7) against the two accused aforementioned, namely, Ram Tossa (i.e. the appellant) and Petu Goala, who has, as indicated above, not preferred any appeal.
Crl. A. 147 (J) of 2005 Page 4
3. To the charge, framed, at the trial, under Section 302 read with Section 34 IPC, both the accused pleaded not guilty.
4. In support of their case, prosecution examined as many as 13 (thirteen) witnesses. The two accused-appellants were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they admitted that they did go to the police station. However, while the present appellant completely denied that he had committed the offence, which was alleged to have been committed, and also claimed that his confessional statement was involuntary, his co-accused, Petu Goala, roping the present appellant too, admitted that the confessional statement was made voluntarily to the effect that he (Petu Goala) and Ram Tossa (i.e. the present appellant) had killed Phani Misir. No evidence was, however, adduced by the defence.
5. Having found the two accused guilty of the offence charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by his conviction and the sentence passed against him, accused Ram Tossa has preferred this appeal; whereas no appeal has been preferred by the co-accused, Petu Goala.
6. While considering the present appeal, it needs to be noted that the case at hand is one, wherein there was, admittedly, no eye witness to the occurrence and, hence, none has been examined by the prosecution as an eye witness to the occurrence of killing of Phani Misir. Crl. A. 147 (J) of 2005 Page 5
7. We, first, consider the evidence of PW3, whose evidence has remained unchallenged by the defence in cross-examination. According to the evidence of this witness (PW3) he knows both the accused and he also knew deceased Phani Misir and that one day, police came to their village and informed them that Phani Misir had been killed and, then, taking him (PW3), along with VDP Secretary and others, police came to road, where the dead body of Phani Misir was found lying. On being asked by the police, they carried the dead body, on a handcart, to the police station.
8. Close on the heels of the evidence of PW3 is the evidence of PW4, who has deposed that one night, when he was on duty at the hospital, police asked him to arrange a handcart to take Phani's dead body, whereupon he arranged a handcart. It is also in the evidence of PW4 that when he came to the police station, he found there present both the accused aforementioned, though he (PW4) made it clear that he did not know why the two accused had gone to the police station. Corroborating PW4, PW5 (Kamil Orang) has deposed that his handcart was taken from his house to carry Phani's dead body.
9. As far as PW6 (brother-in-law of the said deceased) is concerned, his evidence is that on being informed by police, he went to Sonari Police Station and found Phani's dead body lying there with injuries on his head and other parts of his body and accused were, at that point of time, present at the police station, police held inquest on the dead body and obtained his signature on the inquest report (Ext.2). To the same effect is the evidence of PW7, wife of PW6, inasmuch she, too, has deposed that Crl. A. 147 (J) of 2005 Page 6 she, accompanied by her husband (i.e., PW6), came to the said police station and found her elder brother, Phani, lying there dead with injuries on his head.
10. From a combined reading of the evidence of PW3, PW4, PW6 and PW7, what clearly emerges is that Phani's dead body was found lying on the road in the tea estate, where Phani as well as the two accused aforementioned lived, and that both the accused aforementioned were found present at Sonari Police Station, when the dead body of Phani was brought to the said police station.
11. We, now, turn to the evidence of the doctor (PW8), who, admittedly, conducted post mortem examination on the dead body of Phani Misir, on 18-07-1998, has found as under:
"A male around 25 years, average built, rigor mortis absent, body was distended, maggots were present over the wounds.
Injury No.1. 3" incised wound over left temporal region of skull underlying bone was fractured. Brain was exposed and incised along line of wound. Injury No.2. 8" long incised would 1" in breadth extending horizontally from right side of neck at the level of angle of mandible to posterior aspect of neck and underlying muscles incised along the line of wound carotid artery right side was incised.
Injury No.3. 2" length incised wound over occipital region of scalp, scalp deep. Injury No.1, 2 and 3 were ante mortem in nature.
Stomach contained partly digested food matter."
12. The doctor (PW8) has opined that the cause of death was due to shock resulting from the haemorrhage, which the deceased had suffered, because of the injuries sustained by him, Ext. 3 being the post mortem report.
Crl. A. 147 (J) of 2005 Page 7
13. On being asked by the Court, the doctor has clarified that all the injuries were individually sufficient to cause death of a person in the ordinary course of nature. There is no material cross-examination of PW8 by the defence except that the defence has elicited from the doctor (PW8) that all the three injuries, which PW8 had found on Phani's dead body, were on the head and neck region of the deceased.
14. Considering the fact that the findings of the doctor (PW8) and his opinion with regard to death are not in dispute and we, too, do not find anything, in the doctor's evidence, inherently incorrect or improbable, we have no hesitation in accepting the doctor's evidence as correct and his evidence clearly shows three incise wounds having been caused in the head and neck region of the said deceased.
15. When the evidence of the doctor (PW8) is considered in the light of the evidence of PW3, PW4, PW6 and PW7, what also becomes clear, as already pointed out above, is that Phani died due to three incise wounds sustained by him on his head and neck region and that the said incised wounds could have been caused, it is clear, by a heavy sharp edged weapon, such as, axe.
16. The question, is as to why and how the two accused aforementioned happened to be present on the very night of the occurrence, at the said police station, when Phani's dead body was brought to the said police station. Our search for an answer to this question brings us to the evidence of PW9.
17. Coming to the evidence of PW9, who is a constable, we notice that according to his evidence, on 15-07-1998, at around 10.30 pm, when he Crl. A. 147 (J) of 2005 Page 8 was on duty at Sonari Police Station, two young men came in, one of them was carrying an axe and told that he had come after killing a man with the said axe, whereupon the Officer-in-Charge, who was also present at the said police station, interrogated the two young men, who identified themselves as Ram Tossa and Petu Goala, Ram Tossa being the one, who had come with the axe and the said axe (Material Ext.1) was, then, seized by Seizure List (Ext.3).
18. In his cross-examination, while PW9 has admitted that the general diary does not show his duty assignment; he (PW9) nevertheless claimed that he was present, at the said police station, on official work. It is worth noticing, in this regard, that having received the answer from PW9 that he was present, at the said police station, on 16-07-1998, at about 10.30 pm, the defence did not dispute the truthfulness of the evidence, so given by PW9, inasmuch as it (defence) did not suggest to PW9 that on 16-07- 1998, at 10.30 pm, he was not present at the said police station nor was it denied by the defence that M. Ext.1 is the axe, which had been seized, at the said police station, on the night of 16-07-1998. What was denied by the defence was that the two accused had appeared at the said police station and that the accused-appellant had carried with him the axe (M. Ext.1).
19. It is also in the evidence of PW9 that the Officer-in-Charge's room and the one, where he was doing office works, were separate and the two accused, accompanied by each other, came, first, to the room, where he (PW9) was working, and, on the arrival of the two accused, he (PW9) informed the Officer-in-Charge and at that point of time, no outsider was Crl. A. 147 (J) of 2005 Page 9 present at the police station and that both the witnesses to the seizure list were police constable like him (PW9).
20. Broadly in tune with the evidence of PW9, PW10, who is also a constable, has deposed that on 15-07-1998, he was posted at the said police station and while he was doing his official work at night, two men came in, one of them carrying an axe and, upon their arrival, they said that they had come after killing a man and after they had made such a remark before the Officer-in-Charge, the latter called him (PW10) and another constable and, in their presence, the two men gave their names as Ram Tossa and Petu Goala, whereupon the Officer-in-Charge seized the said axe by seizure list (Ext. 3) and he (PW10) signed the seizure list. This witness has identified, in the Court, both the accused, namely, Ram Tossa and Petu Goala, as the ones, who had come to the police station.
21. In his cross-examination, PW10 has clarified that he saw the two accused, when they arrived at the police station. Though it was denied, while cross-examining PW10, that any weapon was seized in his presence, the fact remains that from the cross-examination of PW10, nothing material has been elicited by the defence to show that his evidence is untrue or false. This apart, there is apparently no reason for either PW9 or PW10 to falsely implicate the accused, particularly, when the evidence of PW4 is that they found the two accused present, at the said police station, on the night of the occurrence, when Phani's dead body was carried and brought to the said police station.
22. We are, therefore, convinced that the present appellant, Ram Tossa, and co-accused, Petu Goala, did appear at the said police station on the Crl. A. 147 (J) of 2005 Page 10 night of 16-07-1998 at 10.30 pm and, at that point of time, the appellant, Ram Tossa, was carrying, with him, the axe, which is M. Ext.1 and the said axe was seized by seizure list (Ext.3).
23. Coupled with the above, when we turn to the evidence of the PW11 (Investigating Officer) we notice that according to his evidence, on 16-07-1998, he was posted at Sonari Police Station and on that day (i.e. on 16-07-1998), at about 10.30 pm, the two accused, namely, Ram Tossa and Petu Goala, came there with an axe and reported that on that very day, at around 7.30 pm, both of them had killed Phani Misir of labour line No. 2 by cutting him with axe, whereupon GD Entry No. 408, dated 16-07-1998, was made. It is also in the evidence of the Investigating Officer (PW11) that both the accused were, then, arrested and the said axe was seized by seizure list, which is Ext. 3, and that on being entrusted by the Officer-in- Charge of the said police station with the investigation of the case, he, immediately, rushed to the place of occurrence and, on finding Phani's dead body, held inquest over the same in presence of witnesses and prepared inquest report (Ext.2), he also prepared a sketch map of the place of occurrence, Ext.4 being the said sketch map, and that he sent the dead body for post mortem examination.
24. We may also point out that according to the sketch map (Ext.4), the correctness whereof is not also in dispute, Phani's dead body was found lying in the drain, which passes by the side of old Tomkak road in the said tea estate.
25. In his cross-examination, the investigating officer (PW11) has admitted that he did not send the seized axe to forensic science laboratory Crl. A. 147 (J) of 2005 Page 11 for chemical analysis. It logically follows that if no other specific evidence is found indicating that the said axe was used in killing Phani Misir, it would be well-neigh impossible to hold that the said axe (M. Ext.1) is the weapon of offence.
26. Considering the fact that the relevant GD Entry (Ext.6) contains, according to the Investigating Officer, what had transpired at the said police station on 16-07-1998 at 10.30 pm. and the contents of the GD Entry (Ext.6) have not been questioned or disputed by the defence, we reproduce below the relevant GD Entry (Ext. 6):
"G.D. ENTRY NO. 408
16.7.08 10.30 p.m. Arrival of accused and entry Now Ram Tassa, S/O Lt. Jogen Tassa and Petu Goala, S/O Shyam Goala, both residents of Purani Towkak, arrive at the P.S. with a 'Parashu' axe in hand. Handing over the axe at the P.S. they say that around 7.30 p.m. today the two of them, in a body, had killed Phani Misir of Purani Towkak line No. 2 by cutting him with the said axe. On receipt of the information, an entry is made in the General Diary. The informants Ram Tossa and Petu Goala are arrested u/s 51 Cr.P.C. They are now subjected to body search by constable on guard duty and detained in the lock up. S.I. D. Sinha is given the charge of investigation. The axe is seized in presence of witnesses and kept at the P.S. Sd/- D.K. Bora O/C Sonari P.S 16.7.98"
(Emphasis is supplied)
27. In the case at hand, before taking into account the question as to whether the statement, allegedly made by the two accused, at the said police station, is or is not admissible, what this Court has to decide is Crl. A. 147 (J) of 2005 Page 12 whether an information given to police, at a police station, by a person that he has committed an offence, is or is not admissible in evidence.
28. Therefore, the question, which, now, confronts us is: Whether the evidence, given by PW9, PW10 and PW11 to the effect that the two accused, on their appearance at the said police station, had mentioned that they had come after killing a man, is or is not admissible?
29. In order to reach a correct conclusion to the question, posed above, one has to take into consideration the provisions of Sections 25, 26 and 27 of the Evidence Act. These three sections are, therefore, reproduced below:
"25. Confession to police officer not to be proved. - No confession, made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person, whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much 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."
30. A bare reading of Section 25 makes it clear that this Section (Section
25) mandates that no confession, made to a police officer, shall be proved as against a person accused of an offence. Similarly, Section 26 provides that the confession, made by an accused person, while in the custody of a police officer, cannot be proved against him unless, of course, the confession is made in the immediate presence of a magistrate. Thus, while Section 25 completely bars confession of an accused person, made to a police officer, from being proved against the accused, Section 26 bars from being proved a confession made by an accused person to anyone whomsoever if the accused person was, at the time of making the Crl. A. 147 (J) of 2005 Page 13 confession, in the custody of the police, unless the confession has been made in the immediate presence of a Magistrate.
31. However, to the bar, so imposed, by Sections 25 and 26, on the use of confession made by an accused person, Section 27 carves out an exception inasmuch as it provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, while the accused person is 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.
32. Thus, Section 27 acts as proviso to Sections 25 and 26. A statement, which falls under Section 27 and is generally termed as 'disclosure statement' , is allowed to be used on the basis of the view that when a fact is actually discovered in consequence of information given by an accused person, some guarantee is afforded that the disclosure statement was true. Thus, Section 27 permits limited use of the information, which an accused may have disclosed to the police, while he was in the custody of the police.
33. The root of Section 27 lies in the principle of law, which was propounded in Rex vrs Warckshall, in the year 1783, reported in 1 Leach CC 263, and which received support from Lockhard (supra), in the year 1785, as reported in Leach CC 386.
34. In Lockhard (supra), accused made a confession before the police, which was inadmissible inasmuch as the confession was induced by promise of favour. However, in consequence of the information given by the accused in his confessional statement, the goods stolen were found Crl. A. 147 (J) of 2005 Page 14 between the sacking of the bed of the accused. The discovery of articles was held to be admissible, though the confession had to be excluded. Two years later, in Lockhard (supra), the prisoner was indicted for stealing a number of diamonds and pearls. While making confession to the police as regards the theft having been committed by him, the accused also told the police that part of the stolen properties had been given by him to one Mr. Grant. In Lockhard (supra) also, the confession had been made in pursuance of a promise of favour and, hence, the confession was found to be inadmissible. However, it was held that though the confession, improperly obtained, cannot be given in evidence, yet the bar, imposed on the admissibility of the confession, would not go to the extent of rejecting the evidence of the other witnesses, which were given in consequence of such confession. Thus, in Lockhard (supra), while the confession was not admitted, it was held that Mr. Grant could very well depose that he had got the jewels from the prisoners.
35. The result of both the two cited cases, namely, Warckshall (supra) and Lockhard (supra), gave rise to the principle that when any information is improperly obtained from an accused and, in consequence thereof, there is discovery of some material fact, e.g., stolen property or body of a person murdered, such discovery would be admissible in evidence. In other words, the principle, which the cases referred to above, gave rise to, was that the fact discovered is admissible, though the confession may be inadmissible and it is this principle, which, broadly speaking, stands engrafted in the form of Section 27 of the Evidence Act. Crl. A. 147 (J) of 2005 Page 15
36. The idea behind the partial lifting of the ban against the use of a confessional statement, made by a person, accused of any offence, to the police, is that if a fact is actually discovered in consequence of the information given by the accused, it provides some guarantee of truth to that part of the information, which was the clear, immediate and approximate cause of discovery.
37. To put it a little differently, the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information was true and, consequently, the said information can safely be allowed to be given in the evidence, because if such an information is further fortified and confirmed by the discovery of articles or the weapon of crime, one is led to the belief that the information about the confession made as to the articles of crime cannot be false. (See Suresh Chandra Bahri vs. State of Bihar (AIR 1994 SC 2420).
38. If Section 27 is to be resorted to, then, one of the prime conditions is that the person, whose statement, which may or may not amount to confession, must be accused of an offence and in the custody of police. In other words, Section 27 applies to an information given by a person, who is accused of an offence and in the custody of a police officer.
39. In the case at hand, the two accused were, according to the evidence of the police officers, arrested after they had allegedly given information as regards the fact that they had killed Phani Misir. Hence, the appellant was not, formally, in the custody of the police officer, when Crl. A. 147 (J) of 2005 Page 16 he, accompanied by co-accused Petu Goala, had disclosed to the police that they had come to the police station after killing Phani Misir. Unless, therefore, it can be shown that the appellant can be deemed to be in constructive custody of police officer and unless it is also shown that even when an accused is deemed to be in constructive custody of a police officer, his 'disclosure statement' is admissible in evidence if the 'disclosure statement' leads to discovery of a fact, the statement, which is shown to have been made by the two accused, as reflected by General Diary Entry (Ext.6), cannot be treated as admissible evidence.
40. The law regarding value and use of the first information report lodged by accused has been succinctly laid down by the Supreme Court, in Aghnoo Nagasia v. State of Bihar (AIR 1996 SC 119), wherein the relevant observations read as follows:
"The first information report recorded under Section 154 Code of Criminal Procedure as such is not substantive evidence, but may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness, where the accused himself gives the first information the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 95 of the Evidence Act.
Where the first information report is given by the accused to a police officer and amounts to a confessional statements proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence, but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.
The test of severability, namely that if a part of the report is properly severable from the strict confessional part. Then the severable part could be tendered in evidence is misleading and the entire confessional statement is hit by Section 25 and save and except as provided by Section 27 and save and except Crl. A. 147 (J) of 2005 Page 17 the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence."
41. A careful reading of the above observations, made in Aghnoo Nagasia (supra), reflects the position of law thus: First Information Report, recorded under Section 154 Code of Criminal Procedure, is not substantive evidence; but the same maybe used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act if the informant is called as a witness at the trial. Where the accused himself gives the first information, the fact of his giving the information will be admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non- confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant; but if the first information, given by the accused to a police officer, is confessional in nature, the same cannot be used against him, because of the bar imposed by Section 25 of the Evidence Act. Such a confession will include not only the admission of the offence, but all other admissions of incriminating facts relating to the offence contained in the confessional statement. No part of such a confessional statement can be received in evidence except to the extent that the ban, imposed by Section 25, is lifted by Section 27 of the Evidence Act.
42. Explaining the concept of severability of a confessional statement into incriminating and non-incriminating components, the Supreme Court, in Aghnoo Nagasia (supra), has also laid down that the test of severability, namely, that if a part of the report is properly severable from the strict confessional part, then, the separable part could be tendered in Crl. A. 147 (J) of 2005 Page 18 evidence against the accused is misconceived and that such a confessional statement will, in its entirety, be hit by Section 25 save and except the extent to which the ban, imposed by Section 25, is lifted by Section 27. That apart, save and except the formal part of such confession, which identifies the accused as the maker of the report, no part of such confessional statement can be tendered in evidence.
43. Coupled with the above, one may also note that in the case of State of UP v. Deomond Upadhaya (AIR 1960 SC 1125), the Supreme Court has held, "When a person, not in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge, which may be made against him, he may appropriately be deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the Evidence Act. In the case of Aghnoo (supra), it was assumed that the appellant was constructively in police custody."
44. What becomes abundantly clear from the law laid down in Deomond Upadhaya (supra) and Aghnoo (supra), is that when a person, not being in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, which has a bearing on the charge, that may be made against him, he may be deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the Evidence Act and such a person can be deemed to be constructively in police custody.
Crl. A. 147 (J) of 2005 Page 19
45. In the light of the above, what follows is that if the contents of the Ext. 6, which the prosecution relies upon, can be severed in such a manner that it can fall within the ambit of Section 27, then, such a portion of the statement, made by the accused, can be admitted into evidence.
46. While considering the scope of Section 27, what needs to be borne in mind is that the first condition, which is necessary in order to apply Section 27, is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. The second condition for application of Section 27 is that the discovery must be deposed to. This, in turn, means that the factum of discovery has to come on record by way of evidence and not otherwise. The third condition is that at the time of receiving the information, the accused must have been in police custody. The fourth, but, perhaps, the most important condition is that only "so much of the information", as relates 'distinctly' to the 'fact thereby discovered', is admissible. The rest of the information, which an accused person might have given, must be kept excluded. The meaning of the expressions, 'so much of the information', and 'distinctly', have been subject of interpretation in a number of judicial pronouncements. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery.
47. The word 'distinctly', appearing in Section 27, means 'directly', 'indubitably', 'strictly' and 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates 'to the fact thereby discovered' and is the linchpin Crl. A. 147 (J) of 2005 Page 20 of the provision. This phrase refers to that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement, which may indirectly or remotely relate to the fact discovered. (See Mohd. Inayatulla v. State of Maharashtra, reported in AIR 1976 SC
483).
48. Let us, now, turn to the question as to how one should determine which part of the statement of an accused person would be admissible in evidence by taking resort to Section 27. In the case of Mohmed Inayatulla (supra), the Supreme Court has pointed out that the first step, in the process of determination as to what fact has been discovered, in consequence of a statement made by an accused person, is to pinpoint that fact, which can be said to have been discovered in consequence of the statement of the accused person. In Mohd. Inayatulla (supra), the statement of the accused read thus: "I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August". In the statement so made by accused Inayatulla, the facts discovered, as pointed out by the Supreme Court, in Mohd. Inayatulla (supra), were three fold, namely, (a) chemical drums, (b) the place, where the chemical drums lay deposited; and (c) the knowledge of the accused as regards the fact that such chemical drums lay deposited at the said place. The next step, according to the Supreme Court, ought to have been to split the said statement into its various components and to separate the admissible component from the inadmissible ones and, thereafter, only that component or portion, which was the immediate cause of discovery, Crl. A. 147 (J) of 2005 Page 21 ought to have been recorded as the legal evidence and not the rest of the statement, for, the rest of the statement ought to have been excised and rejected. Thus, on splitting up the said statement of accused Inayatulla, the Supreme Court found that only the first part of the said statement, namely, "I will tell the place of deposit of the three chemical drums", was the immediate and direct cause of the fact discovered and, hence, out of the whole statement of the said accused person, only that portion, namely, "I will tell the place of deposit of the three chemical drums", was held admissible in evidence under Section 27. The rest of the statement, namely, "which I took out from the Haji Bunder of first August", constituted only the past history of the drums or their theft by the accused and since this part of the statement of accused Inayatulla was not the distinct and proximate cause of the discovery, the same was ruled out of evidence altogether.
49. We, now, turn to yet another important aspect of Section 27. In view of the fact that Section 27 makes only "so much of the information, as relates distinctly to the fact thereby discovered" provable, it clearly follows that a court is required to know as to what exactly the accused had stated to the police so that the court, before acting upon the evidence given, knows as to how much of the information, given by the accused, relates 'distinctly' to the fact thereby discovered. The word, 'distinctly', as pointed out in Mohd. Inayatulla (supra), has been used in order to define the scope of provable information.
50. Addressing itself to the question as to whether an accused must lead the police to the discovery of some material object, in order to apply Section 27, the Supreme Court has replied that on receiving the Crl. A. 147 (J) of 2005 Page 22 information, it would be for the police officer to take or not to take the accused, who has given the information, to the spot, and if, in a given case, the police officer does not take the accused concerned to the spot, it will have no bearing on the question of admissibility of the information given and/or recovery of material object within the ambit of Section 27. The relevant observations, made on this aspect of law, in Navjot Sandhu (supra), read as under:
"There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence."
51. In the present case, the contents of GD Entry (Ext.6) show that the statement, which had been acted upon by the police for the purpose of going to the place of occurrence and became the basis for finding out the dead body of Phani Misir, is a statement, which is clearly a joint statement made by the two accused. Unless it can be discerned as to which accused had made the statement, which led the police to find the dead body, it is wholly impermissible to admit any part of the statement given in the manner as recorded in Ext.6. If an accused appears at a police station and Crl. A. 147 (J) of 2005 Page 23 informs the police that he has killed a person and hands over the weapon of offence and the police seizes such a weapon and, acting on the information, which may be received from the person concerned, police finds the dead body of the person, whom the accused claims to have killed, then, the fact that the accused knew as to where the dead body was is a relevant fact and since this fact is discovered on the basis of the statement of the accused, the statement, which led the police to find such a fact, would be admissible in evidence by virtue of Section 27. Where, however, there are more than one person, who appeared at a police station and given similar information and it cannot be discerned as to whose statement had led the police to find the dead body, such a boiled and joint statement would be inadmissible.
52. In Nabjot Sandhu (supra), the Supreme Court has pointed out that joint disclosures or simultaneous disclosures are per se not inadmissible under Section 27. The expression, "A person accused", occurring in Section 27, need not, points out the Supreme Court in Nabjot Sandhu (supra), necessarily be a single person and that it could be plurality of the accused also. The Supreme Court has pointed out, in Nabjot Sandhu (supra), thus:
"Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideout of the deceased terrorist and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lakhs from the truck in which they were found at Srinagar is in issue. Learned Senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar, appearing for the accused, contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within ken of Section 27, whereas it the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Court have taken the view that the wording, "a person" excludes the applicability of the Section to Crl. A. 147 (J) of 2005 Page 24 more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused" need not necessarily be a single person but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other would have stated so substantially in similar terms a few seconds or minutes later or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may adduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefatory remarks we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."
53. From the observations made above, it becomes clear that simultaneous statement, by itself, cannot be discarded as inadmissible evidence. However, if the Court is not in a position to ascertain as to who, between two, or amongst more than two, accused persons, had given the information, or on the basis of whose information a discovery of fact was made, it may be difficult for the Court to arrive at a correct conclusion, but this will not make simultaneous disclosure statement inadmissible in evidence. In fact, the Supreme Court has, in Nabjot Sandhu (supra), in no uncertain words, held that simultaneous disclosures by more than one accused cannot, as a proposition of law, be Crl. A. 147 (J) of 2005 Page 25 said to be inadmissible in evidence, though the evidentiary value will be a question of fact in each case.
54. When the number of accused persons, involved in a case, is more than one and it is alleged that more than one accused person had made statements, which led to the discovery of the fact, Section 27 would not be applied to such a case unless it can be ascertained as to whose statement it was, which had led to the discovery of the fact. An information given by an accused person is not like a chorus, sung by all the accused persons together, and, hence, it is necessary that in a case, wherein more than one accused person are involved, it is clearly proved by the prosecution as to who was the accused person, whose statement had led to the discovery of the fact. [See Nabjot Sandhu (supra)].
55. In the case at hand, however, since the disclosure statement (Ext.6), does not enable one to discern as to who, between the two accused had said what and whose statement had led the police to find the dead body of Phani Misir, the statement, so recorded in Ext. 6, is wholly inadmissible in evidence. Except the fact that the two accused had appeared at the said police station and the present appellant, at that point of time, was carrying, with him, the said axe (M. Ext.1) to the said police station, M. Ext. 1 being a weapon, which might have been used for causing death of Phani Misir, nothing contains, in Ext.6, would be admissible in evidence. However, since the said axe (M. Ext. 1), was never put to serological test, it cannot be confidently held that the M. Ext. 1 is the weapon of offence unless the fact that M. Ext. 1, as weapon of offence, can be ascertained from the judicial confession, which the present Crl. A. 147 (J) of 2005 Page 26 appellant and his co-accused, Petu Goala, have made, coupled with any incriminating statements, if made, in this regard, by the present appellant and/or his co-accused at any stage of the trial including the stage of examination under Section 313 Cr.PC.
56. Bearing in mind the above limitation, with which suffers the case of the prosecution, let us point out that the investigating officer, in his cross- examination, has deposed that the distance between the Magistrate's Court and the said police station is about 3 kilometers and that after recording of their confessional statements, he (investigating officer) handed over the two accused to the Court. Though it was suggested to the investigating officer (PW11) that the accused persons had not made confessional statements voluntarily and that they were compelled to make the confessional statements, the investigating officer denied the said suggestion. It was not, however, suggested to the investigating officer (PW11) that either of the two accused had been beaten or tortured by him (PW11) and/or by any one, at the said police station, in order to compel either of the two accused to make judicial confession. In the absence of any material on record supporting the suggestion so made by the defence the suggestion offered to the Investigating Officer (PW11) has to be treated as a mere suggestion and cannot be said to have probablised the case of the defence, which has been put to the Investigating Officer (PW11) in the form of suggestion.
57. We may, now, come to the judicial confession, which the appellant and his co-accused, Petu Goala, have made, it is noteworthy, in this regard, that it is in the evidence of the Investigating Officer (PW11) that Crl. A. 147 (J) of 2005 Page 27 both the accused were sent to the Magistrate for recording their confessional statements, they made their confessions and, on completion of investigation, he submitted the charge-sheet.
58. Closely following the evidence of the investigating officer (PW11), though the two accused offered to make confessional statements, is the evidence of PW13, who was the Sub-Divisional Judicial Officer, Sonari, on 18-07-1998. His evidence is that the Investigating Officer sent the two accused to him for recording their confessional statements and, on being produced before him, when he questioned, the accused replied by saying that they had agreed to make the confession, whereupon he cautioned them about the consequences of making confessional statement and also kept them in his chamber up to 3 pm, giving them time for reflection and that during the period, when they were left for reflection, they remained in his chamber and he directed his peon to keep them in his charge and not to allow anybody to enter his chamber or talk to them or give them sign or signal. It is also in the evidence of PW13 that at about 3.35 pm, when he got down from his Ejlas (i.e., Court), he found that doors and windows of his chamber were closed and, then, he called the two accused one by one and asked them about their willingness to give confession and when both the accused offered to make confession, he, again, cautioned them about the consequences of making confession.
59. PW13 has deposed that he, first, recorded the confessional statement of accused Petu Goala and, then, of accused Ram Tossa and, then, sent them to judicial custody, Ext. 8 being the confessional statement of accused Petu Goala.
Crl. A. 147 (J) of 2005 Page 28
60. PW13 has further deposed that Ext.9 is the form, which he used for recording the confessional statement of accused Ram Tossa, (i.e., the appellant) and that both the accused made their confessions with free mind and voluntarily.
61. We have carefully gone through the forms, which were used by PW13 for recording the confessional statements of the two accused. These forms, we find, contain not only the confessional statements of the two accused, but also various questions, which were put by the Magistrate, at different stages, to them. As well as the cautions, which were applied by the Magistrate or cautions, which were given to the two accused. Since the present is an appeal of accused Ram Tossa, we keep, for the present, our attention confined to the confessional statement of the present appellant, namely, Ram Tossa.
62. In Ext. 9, which is the form, as indicated above, wherein the confessional statement of accused Ram Tossa has been recorded, the Magistrate has clearly recorded that the accused was produced before him, on 18-07-1998, at about 11 am, to have his confessional statement recorded. Ext. 9 also shows that the Magistrate ascertained that the offence was committed on 16-07-1998 at about 7.30 pm, whereupon the accused was asked the details as to the length of time during which, and the place where, he had been under the control of the police and that accused Ram Tossa, along with accused Petu Goala, had surrendered, on 16-07-1998, at about 9.00 pm, at Sonari Police Station and were kept there detained and from the said police station, they were directly sent to the Court, whereupon PW13 explained to accused Ram Tossa that he (PW13) Crl. A. 147 (J) of 2005 Page 29 was not a police officer, but a Magistrate, the accused is not bound to make any confession, but if he did make a confession, it might be used against him as evidence and that he should not say anything, because others had asked him to say and that he had the liberty to say whatever he really wanted to say and that he should say nothing, which is untrue. He (PW13) also specifically asked accused Ram Tossa if the police had ill- treated him, but accused Ram Tossa's reply was in the negative.
63. The Magistrate, then, as indicated above, gave time for reflection to the two accused from 11 am till the time he came down from his Ejlas (Court) and, then, he examined the appellant at 3.35 pm and, having ascertained that the present appellant was still willing to make confession, he put certain questions to the appellant and recorded answers of the appellant given to him. The relevant portion of Ext. 9 is reproduced below:
"6. In order to ascertain whether the accused is prepared to make a statement of his own free will, he is next examined as follows:
Q.1. Do you know that I am not a police officer but a Magistrate? Ans. Yes. I know.
Q.2. Do you know that you are not legally bound to make a confession? Ans. Yes. I know that.
Q.3. Do you know that if you make a confession, the same shall be used against you as evidence during trial?
Ans. Yes. I know.
Q.4. Do you know that you should not make any confession upon being tutored, threatened or coerced by others and that you are at liberty to make or not to make a confession?
Ans. Yes. I know.
Q.5. Do you know that you should not tell a lie, but speak only the truth? Ans. I only want to speak the truth.
Q.6. Do you know that your confession might lead you to life imprisonment or to death sentence?
Crl. A. 147 (J) of 2005 Page 30 Ans. Yes. I know that.
Q.7. Do you think that you will escape punishment if you make a confession? Ans. I have not thought in that manner.
Q.8. Do you know that even if you do not make a confession, you will not be sent back to police custody and instead you will be sent to jail custody?
Ans. I know that.
Q.9. Why do you want to make the confession?
Ans. The truth must always be spoken.
Q.10. What do you want to say?
Ans. My father's name was Jogesh Tassa. Phani Misir and Babul Burha had, in a body, killed my father some 10/11 years ago for no fault of his. I was a young boy then. When I grew up, Phani Misir stated telling around in the village that he would kill me as well. That instilled a perennial fear in my heart. One day, I told my friend Petu Goala that Phani Misir must be killed or he would kill me some day. One day, Phani met me in his line. On that occasion, he said to me "Don't loiter in this area. If you do so, I shall finish you off just as I did your father". From that day, I never went to his line.
On Thursday (16.07.98) Petu and I returned home from garden after completing our works. We then went back to the garden to cut firewood stealthily. The two of us went into the nursery and started cutting firewood. The time then was around 7 pm. We heard Phani Misir going towards his home from towards our village singing along. I then told Petu to catch Phani. The two of us came out and confronted Phani in the middle of the road. Petu kicked Phani in his face. Phani fell down. With the axe in my hand, I then dealt several blows on both sides of his neck. I also dealt a few blows in his abdomen. A little after that, I lifted his head and found that he had died. I then picked up the axe and leaving the man (Phani) on the road itself, informed VDP Secretary Jagannath Nag and Sanatan Tanti about the incident. Petu and I then came to the P.S. and informed about the incident.
Going to the P.S., I told the Daroga about the incident and handed over the axe to him."
64. What is, now, material to note is that while cross-examining PW13, the defence did not dispute the fact that two accused were produced before him, as deposed to by PW13, and as Ext. 9 reflects, at about 11 am, on 18-07-1998, for recording their confessions. The defence also did not Crl. A. 147 (J) of 2005 Page 31 dispute the fact that they (accused) were given time from 11 am till 3.30 pm for reflection. What merely was suggested to PW13 was that he did not give the accused sufficient time for reflection. The suggestion, so given, is wholly vague inasmuch as the defence did not put to PW13 as to when the accused were produced before him and when their confessions were recorded nor did the defence dispute the facts recorded in Ext. 9 by PW13 that the accused were produced, at 11 am, on 18-07-1998, and that they were given time for reflection till 3.35 pm and that the confession was recorded, when PW13 got down from Ejlas (Court). The defence also did not specifically deny the evidence given by PW13 that when he got down from his Ejlas (Court), he found the doors and windows of his chamber closed and, during the period of reflection, the two accused had been placed by him in the charge of his peon, namely, Dhiren Hazarika.
65. The suggestions, therefore, which the defence gave to PW13, but denied by PW13, to the effect that there were police personnel present in the chamber of PW13, during recording of confessional statements, carry no value at all.
66. In fact, in his cross-examination, PW13 has clearly stated that though there were police in the Court, there was no police in his chamber and, having put questions to the accused, he ascertained their voluntariness and willingness to make confession and he was satisfied that they were voluntarily offering to make their confessions.
67. Coupled with the above, we have also noticed from Ext. 9 that PW13 had clearly told the accused-appellant that PW13 was not a police officer, but Magistrate and the accused responded by saying that he knew Crl. A. 147 (J) of 2005 Page 32 it. When the Magistrate (PW13) asked the accused-appellant whether he knew that he was legally not bound to make confession, the accused- appellant replied by saying that he knew it. When the Magistrate (PW13) enquired from the accused-appellant whether he knew that if he made confession, the same would be used against him as evidence during trial, the accused-appellant replied in the affirmative to this question also. The Magistrate (PW13) further told the accused-appellant that he should not make confession on being tutored or threatened and that he is at liberty not to make confession and accused-appellant replied by saying that he knew. The Magistrate (PW13) made it clear to the accused-appellant that his confession might lead him to life imprisonment and the accused- appellant replied thereto by saying that he knew it too. When the accused was asked by PW13 whether he was under the impression that he would escape punishment if he made confession, the accused-appellant replied by saying that he had not thought in that manner. We find that PW13 had made it clear to the accused-appellant that even if he (i.e., appellant) chose not to make confession, he would not be sent to police custody and would, rather, be sent to jail. Ultimately, the Magistrate (PW13) asked the accused-appellant the question as to why he wanted to make confession and the accused replied by saying that the truth must always be spoken and, thereafter, the accused-appellant described to PW13 the incident, which, according to the accused-appellant, had taken place.
68. In the face of the questions, which the Magistrate had put to the accused-appellant, and the accused-appellant's replies thereto, we find that the Magistrate (PW13) was not wrong in treating the confessional Crl. A. 147 (J) of 2005 Page 33 statement of the accused-appellant as voluntary and true and gave a certificate to the effect that the confession was voluntarily made, the same was read over to the person making it and it was admitted by the maker as correct and that the same consisted of full and true account of the occurrence, which he (accused) had made. In fact, it has been clearly recorded by the Magistrate that he personally observed the body of the accused (i.e., appellant), but no sign of any torture on the body of the accused-appellant was found by him and that during his questioning, he found the demeanor of the accused-appellant quite normal and he, therefore, formed the opinion that the accused-appellant gave his confessional statement voluntarily. The observations, so made by the Magistrate, have gone completely unchallenged by the defence. The suggestion of the defence, therefore, given to the Magistrate that the confessional statement made by the present appellant, was involuntary cannot be attributed any importance at all and must be treated to have remained only as a suggestion.
69. It may, however, be noted that in his cross-examination, the investigating officer (PW11) has deposed that the accused was produced before the Magistrate at 2 pm, whereas the Magistrate (PW13) has claimed that the two accused were produced at 11 am. If the defence wanted to take the advantage of the statement of the investigating officer, then, the defence ought to have put to the Magistrate (PW13) that the two accused were produced before him (PW13) not at 11.00 am, as recorded by him in Ext. 9, but at 2.00 pm. The defence did not do any such thing Crl. A. 147 (J) of 2005 Page 34 and the time of production before the Magistrate (PW13), as recorded by the Magistrate (PW13), remained unchallenged and undisputed.
70. Coupled with the above, the learned trial Court has perused the case diary and found that the case diary reveals that both the accused were forwarded to the Magistrate on 18-07-1998 at 10.20 am. Thus, the Investigating Officer's evidence that on 18-07-1998, the two accused were produced before the Magistrate at 2.00 pm is even belied by the contents of the case diary. We see, therefore, no reason to take the view that sufficient time had not been given to the accused-appellant for reflection, particularly, when the presence of the police, at the time of reflection, could not be shown by the defence, no mark of injury of any kind was found on the body of the accused-appellant, no claim, even while cross- examining the investigating officer, was made by the defence to the effect that the police had tortured the accused-appellant or beaten him. Above all, the Magistrate (PW13), we fine, had made it clear to the accused- appellant that if he chose not to make confession, he (i.e., accused- appellant) would not be sent to police custody, but to jail.
71. Complete assurance had, thus, been given to the accused-appellant by the Magistrate (PW13) that he would not be handed over to the police and, having ascertained the voluntariness of the confession, which the accused-appellant wanted to make, the confession of the accused- appellant was recorded.
72. Moreover, considering the fact that the accused-appellant denied that he had been ill treated by the police and there was no sign of torture on his body, there is no reason for us to hold, in the light of what have Crl. A. 147 (J) of 2005 Page 35 been discussed above, that the confession of the accused-appellant was involuntary. We, therefore, hold that the confession of the accused- appellant was wholly voluntary.
73. Turning to the confessional statement of the convict, Petu Goala, who has chosen not to present any appeal, we find that the Magistrate (PW13) gave him also all warnings and also informed him as regards the consequences of making confession and told him that he should not make confession upon being tutored, threatened or coerced by others and that he should make the confession absolutely on his own, and to the questions, so put, accused Petu Goala replied by saying that he wanted to make confession on his own. When the Magistrate asked him whether he (accused Petu Goala) knew that he should not tell a lie and should speak only the truth, this accused replied by saying that he would speak only the truth and, on being questioned as to why he wanted to make confession, accused Petu Goala replied by saying that he did not want to tell a lie, because he had committed an offence and speaking the truth is a virtue. The Magistrate also asked accused Petu Goala if the police had ill- treated him, but the reply of this accused too was in the negative. We may also point out, at this stage, that the Magistrate has also recorded that he had personally examined the body of accused Petu Goala, but found no sign of police torture and also found the demeanor of the accused was quite normal and that is how he formed the opinion that the statement made by accused Petu Goala, was voluntary. The confessional statement of Petu Goala reads as under:
Crl. A. 147 (J) of 2005 Page 36 "Q. You may say what you have to?
Ans. Ram Tossa and I together killed Phani Misir around 7.30 pm on 16.07.98. Ram Tossa and I are friends. On our return from work that day, Ramu and I had gone towards the nursery, seeking firewood. Ramu had taken along an axe. In the night, the two of us had been cutting firewood stealthily.
About that time, Phani Misir was walking towards his house from towards our line, singing along. Hearing his voice, we stopped cutting firewood. That was because we had been thinking for a long time to kill him. He had killed Ramu's father, i.e., my Tayoi (brothers or sisters father-in-law) a long time back for no fault. Out of that grudge, Ramu and I decided to kill him. He (Phani) had also been looking for an opportunity to kill my friend Ramu. Hearing his song, the two of us stealthily came out on the road from inside the garden. It was dark then. We confronted him. There ensued an altercation. He stopped on the road. I then kicked him hard on the face. He fell down. With the axe in his hand, Ramu then started hacking him in his neck and abdomen. He did not get an opportunity to raise a shout. Even as Ramu was hacking him, I was standing nearby. A little later, Ramu lifted his head and examined him. He was not making any movement. Then we realized that he had died. The two of us then went to VDP Secretary Jagannath Nag and informed him about the incident. From there, we went directly to the police station and told the police about the incident in details. The police then put us into the lockup."
74. In the face of the elaborate precautions, which PW13 took in recording confessions of the two accused, we find no reason to hold that the confessional statements, made by the accused-appellant, Ram Tossa, and his co-accused, Petu Goala, were involuntary.
75. The question, now, is whether the judicial confession of the accused-appellant, Ram Tossa, was true? How to ascertain if a voluntarily made judicial confession can be relied upon as true too? In this regard, one may recall the decision, in Shankaria v. State of Rajasthan (AIR 1978 SC 1248), wherein the Supreme Court observed thus:
"If the first test is satisfied, the Court must, before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of Crl. A. 147 (J) of 2005 Page 37 evidence, there is no rigid cannon of universal application. Even so, one broad method, which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. "
(Emphasis is added)
76. In the present case, in order to determine if the judicial confessions, made by the present appellant, Ram Tossa, and co-accused, Petu Goala, are true or not true, let us, now, in the light of the law laid down, in Shankaria (supra), ascertain if the confessional statements, made by them receive necessary corroboration from the remaining evidence on record.
77. We, first, consider the judicial confession of accused-appellant, Ram Tossa.
78. While considering the judicial confession of the appellant, Ram Tossa, it needs to be noted that the learned trial Court specifically put to this appellant, under Section 313 Cr.PC, that PW4 has given evidence to the effect that when he carried the dead body of Phani Misir, on a hand, cart to the police station, he saw there both the accused, that is, Ram Tossa, (i.e., the present appellant) and his co-accused, Petu Goala. To the question, so put, the accused-appellant replied by saying that PW4 had, indeed, seen him and Petu Goala at the police station. The appellant has, however, denied, in his examination, under Section 313 Cr.PC., that he went to the said police station on his own.
79. What is, however, significant to note is that the appellant admits that he was found present at the said police station at the time, when the dead body of the said deceased was brought there, but he denied that he Crl. A. 147 (J) of 2005 Page 38 had gone to the police station on his own. What cannot, however, be ignored is the fact that, while cross-examining the police constables, or the Investigating Officer, the accused-appellant did not suggest to anyone of them that he and/or his co-accused, Petu Goala, was/were brought to the said police station and that none of them had appeared there on his own. In fact, the defence admitted, while cross-examining the prosecution witnesses, particularly, PW9 and PW10, did not dispute the fact that the two accused did go to the police station; what the defence denied, while cross-examining PW3, PW9 and PW10, was that the two accused had gone to the police station with an axe. The two accused, thus, did not dispute, while cross-examining PW 9 and PW10, the fact that they had gone to the said police station on their own; what they disputed was the carrying of the axe by them, while they had gone to the police station.
80. What surfaces from the above discussion is that the appellant, accompanied by his co-accused, Petu Goala, did go to the police station and was present at the time, when Phani Misir's dead body was brought there.
81. To put it a little differently, when the appellant and his co-accused, Petu Goala, have not suggested to the police constables, or the Investigating Officer, that the appellant and/or his co-accused had been brought to the police station by the police or somebody else, it clearly follows that the appellant and his co-accused did appear at the police station on their own. To this extent, the judicial confession, made by the appellant, receives corroboration from the unshaken evidence on record. Crl. A. 147 (J) of 2005 Page 39
82. Coupled with the above, the appellant has retracted the confession, when the trial came to the stage of his examination under Section 313 Cr.PC, wherein he stated to the effect that on having been asked by the police, he put his signature on his judicial confession; whereas, while the investigating officer (PW11) was examined, no such suggestion was offered to him.
83. The statement, therefore, made, under Section 313 Cr.PC, for the first time, by the present appellant to the effect that it was on being asked by the police that he had put his signature on his judicial confession carries no weight at all. Moreover, the description of the assault, on Phani Misir, tallies substantially with the medical evidence on record inasmuch as the injuries, according to the doctor, were found on the region of neck and head of the deceased. This apart, Phani Misir had sustained incised wounds, as disclosed from the medical evidence on record, and the incised wounds, which the said deceased had sustained, could have been caused, one can clearly see, if the deceased was assaulted by an axe. Thus, the medical evidence and the description of the occurrence, given by the present appellant in his judicial confession, are consistent with each other.
84. Further-more, the description of the occurrence, given by the appellant, as to how Phani Misir had been killed by the appellant and the co-accused, Petu Goala, is not inherently improbable or unbelievable and it may be also be noted, in this regard, that according to the appellant's judicial confession, Phani Misir was assaulted on the road and the sketch- Crl. A. 147 (J) of 2005 Page 40 map, prepared by the Investigating Officer, shows that the dead body was found lying by the side of the road.
85. Coupled with the above, in the judicial confession, the appellant has clearly deposed that having satisfied himself that Phani Misir was dead, he, accompanied by his co-accused, Petu Goala, went to the said police station and this part of the appellant's judicial confession, as pointed out above, receives support from the oral evidence on record. Thus, the judicial confession, made by the appellant, has received corroboration on material aspects by oral and medical evidence on record.
86. From what have been discussed above, what clearly emerges is that the judicial confession, made by accused-appellant, Ram Tossa, was not only voluntary, but true as well.
87. The conclusion, reached above, receives support from the fact, if we may reiterate, that he had made judicial confession and, while not denying that he had made judicial confession, what he contended was, when he was examined under Section 313 Cr.PC., that his signatures, on his confessional statement, were given by him on being asked by the police to do so; whereas no such suggestion was offered to either the Investigating Officer (PW11) or the Magistrate concerned, when they were under cross-examination by the defence. Hence, the appellant's contention that he signed his judicial confession on being asked by the police cannot be relied upon. Consequently, the judicial confession has to be held, and we do hold as voluntary and true.
Crl. A. 147 (J) of 2005 Page 41
88. It is of utmost importance to note, with regard to the above, that the when prosecution seeks conviction of an accused on the basis of the confession of the accused himself, there is no impediment in basing the conviction of the accused on his own confession if the Court finds such a confession voluntary and true; yet, as a rule of practice, it is unsafe to rely upon a confession, particularly, if the confession stands retracted, unless the Court is satisfied that the retracted confession is voluntary and true and the same has been corroborated in material particulars. While considering this aspect of the matter, we deem it fit to refer, to the case of Sarwan singh Rattan Singh Vs. State of Punjab (AIR 1957 SC 637), wherein the Supreme Court laid down as follows:
"................It is, however, true that Sarwan Singh has made a confession and in law, it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. "
89. We may also refer to Pyare Lal Bhargava Vs. State of Rajasthan, (AIR 1963 SC 1094), wherein the Supreme Court laid down as follows:
"............A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It can not even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for, a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a Crl. A. 147 (J) of 2005 Page 42 retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars".
90. The Supreme Court, in Kehar Singh Vs. The State (Delhi administration), reported in AIR 1988 SC 1883, has made it clear that there is no impediment in law in conviction an accused solely on his own confession, even if retracted, provided that the Court believes such a confession as true. The law, that no Court can throw away a confession merely because the confession is retracted, has been explicit by the Supreme Court, in State of Tamil Nadu Vs. Kutty alias Lakshmi Narashinhan, 2001 Crl. L. J. 4168, wherein the Supreme Court has observed and held as follows:
"..................Learned Judges of the High Court declined to act on the said confession mainly for two reasons. First is that the confession was retracted by the maker thereof and second is that the recovery of articles was made prior to the confession. We may state at the outset itself that both reasons are too insufficient for overruling the confession. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. The retract from confession is the right of the confessor and all the accused against confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once these tests are found to be positive the next endeavour is to see whether there is any other reason, which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard. "
(Emphasis is added)
91. In K. I. Parunny Vs Asstt. Collector (HQ), Central Excise Collectors, Cochin, reported in (1997) 3 SCC 721, the Supreme Court has, Crl. A. 147 (J) of 2005 Page 43 in no uncertain words, clarified that in a criminal trial, punishable under the provisions of the IPC, it is, now, well settled legal position that confession can form the sole basis of conviction.
92. After taking into consideration a number of its own decisions, the Supreme Court, in R. I. Parunny (supra), has laid down succinctly the law with regard to basing of conviction of an accused, on his sole confession, in the following words:
".................It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution. "
(Emphasis is added)
93. What follows from the above discussion, if we may reiterate, is that there is no legal bar in basing the conviction of an accused on his own confession if the confession is found to be voluntary and true; but safer it is, as a rule of general practice and prudence, that the Court seeks some corroboration from other materials on record and if such corroboration is received, conviction can be safely based on the confession of the accused. We may also point out that when a confession Crl. A. 147 (J) of 2005 Page 44 is found to be voluntary and true, the same cannot be refused to be acted upon merely on the ground that the confession stands retracted, for, even a retracted confession can form legal basis for conviction if the Court is, as observed in Pyare Lal Bhargava (supra), satisfied that the confession is true and voluntary.
94. In the case at hand, we have already indicated above that the retraction of the confession, made by the accused appellant, Ram Tossa, at the time of his examination under Section 313 Cr. P. C., carries, for the reasons we have already assigned, no credibility at all and in the face of the fact that we are satisfied that the confession of this accused-appellant is voluntary and true and since the same receives, as we have noticed above, corroboration in its material particulars from the other evidence on record, we have no hesitation in holing that Phani Misir was put to death in the manner as the confessional statement of the accused- appellant, Ram Tossa, discloses.
95. Turning to the judicial confession made by co-accused Petu Goala, it clearly transpires that there is no material contradiction between his description of the occurrence leading to the assault on, and killing of, Phani Misir and the description of the occurrence, given by the appellant, Ram Tossa. More-over, the judicial confession of the accused, Petu Goala, too, receives material corroboration from the medical and other oral evidence on record. This apart, both the accused claimed, in their respective judicial confessions, that they had gone to the police station and, at that time, Ram Tossa was carrying an axe and this part of the Crl. A. 147 (J) of 2005 Page 45 judicial confessions, made by the two accused, again, receives corroboration from the other evidence on record as described above.
96. Because of what have been discussed and pointed out above, we find that the judicial confessions, made by the appellant and his co- accused, were not only voluntary, but true too.
97. What can also not be ignored is that while the appellant claims that he had been brought to the police station, his co-accused, Petu Goala, has clearly stated, in his answer to the question put to him, under Section 313 Cr.PC., that he and Ram Tossa (i.e., the appellant) arrived at the police station together. Even in his statement under Section 313 Cr.PC., Petu Goala admitted that he and Ram Tossa appeared at the police station, on their own will, and that Ram Tossa handed over the axe on arriving at the police station and that they also gave, at the said police station, their names. To the question put to accused, Petu Goala, in his examination under Section 313 CrPC, as to whether axe was seized from Ram Tossa, accused Petu Goala replied in the affirmative. In fact, in his examination under Section 313 Cr.PC., accused Petu Goala clearly stated that after he had arrived at the Police Station, Ram Tossa handed over the axe and that they had given their names there at the police station. This accused, therefore, admits, same as the appellant, the fact that he and Ram Tossa did go to the police. What, additionally, co-accused, Petu Goala, states that both of them went to the police station on their own and handed over the axe there. Thus, apart from the fact that the evidence on record supports the judicial confession, wherein these two accused have stated to the effect that they had carried the axe to the police station, the Crl. A. 147 (J) of 2005 Page 46 admission, made in this regard, by co-accused Petu Goala, as indicated hereinbefore, lends support to this part of the evidence on record including the judicial confession.
98. Above all, in his examination under Section 313 Cr.PC., accused Petu Goala has stated that having killed Phani Misir, Ram Tossa took him (Petu Goala), they appeared at the police station and police seized the axe.
99. Before we come to the value of the statements, so made by co- accused, Petu Goala, under Section 313 Cr.PC., what is required to be determined is as to how far the admissions, made by a co-accused, be relied upon by a Court for the purpose of founding the conviction of an accused ?
100. The question, therefore, is this: Whether the law permits using of admissions or confessions made by an accused, during the course of his examination, under Section 313 Cr.PC, and if so, how and to what extent.
101. While considering the scope and value of a statement made by an accused under Section 313 Cr.PC., what needs to be pointed out is that under Section 313 (1) (a) Cr. PC, a trial Judge is empowered to put any question to an accused at any stage of the trial; but at the end of the trial, it is, under Section 313 (1) (b), mandatory for the trial Judge to put to the accused, facing trial, every such piece of evidence, which appears to be incriminating against the accused, and reply of the accused shall be sought thereto. In fact, Section 313 Cr. PC. aims at enabling an accused to personally explain circumstances appearing in the evidence against him. Crl. A. 147 (J) of 2005 Page 47 Examination of an accused, under Section 313 (1) (b)Cr. PC, is, therefore, not an empty formality, but a solemn act of every trial Court.
102. As observed by the Supreme Court, in State of Maharashtra Vs. Sukhdeo Singh (AIR 1992 SC 2100), Section 313 Cr. PC is a statutory provision, which embodies the fundamental principle of a fair trial based on the maxim, audi alteram partem, that attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances, laid on record, with a view to giving the accused an opportunity to offer his explanation if he chooses to do so.
103. As a matter of fact, as indicated in Sukhdeo Singh (supra), Section 313 (1) (b) Cr. PC not only casts a solemn duty on the trial Court to elicit the response of the accused to every piece of incriminating circumstance, which may appear against him, but also confers a corresponding right on the accused to receive an opportunity so that he can offer his explanation, if he has any, with regard to such incriminating materials or circumstances as may be appearing against him from the evidence on record. Examination of the accused under Section 313 (1) (b)Cr.PC. is reached after the witnesses of the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of prosecution's evidence and before recording statement of the accused under Section 313 (1) (b) Cr. PC, the trial Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused.
104. Before an accused is examined under Section 313 (1) (b)Cr. P.C., the trial Judge is not expected to sift the evidence and pronounce whether or Crl. A. 147 (J) of 2005 Page 48 not he would accept the evidence regarding any incriminating material against the accused to determine whether or not he would examine the accused on that material. To do so, points out the Supreme Court, in Sukhdeo Singh (supra), would amount to pre-judging the evidence without hearing the prosecution under Section 314 Cr. PC.
105. No wonder, therefore, that the Supreme Court, in Sukhdeo Singh (supra), has observed that however weak or scanty the prosecution evidence may be with regard to an incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereto. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered and it is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313.
106. In short, if there is material against the accused, he must be examined, under Section 313 (1) (b) Cr. P.C., however weak or scanty the evidence against the accused may be. The relevant observations read as follows:
"To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under Section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused 5, and hence the learned trial Judge was not justified in examining the accused under Section 313 of the Code."
(Emphasis is added) Crl. A. 147 (J) of 2005 Page 49
107. What emerges from the above discussion is that when the prosecution's evidence is closed, it is imperative, on the part of the trial Judge, to examine the accused under Section 313 (1) (b) Cr. PC. In such examination, the Judge has the duty to put to the accused all such circumstances, which appear from the evidence on record, incriminating against the accused and solicit the response of the accused thereto. This would give an opportunity to the accused to explain incriminating materials, which may have surfaced on the record against him. The answer, so given, by the accused may be taken into consideration along with the evidence on record.
108. In order to correctly appreciate the scope of Section 313 Cr.P.C., it is necessary to recall the facts of the case of Sukhdev Singh alias Sukha (supra). In Sukhdev Singh alias Sukha (supra), accused 1 (Sukhdev Singh @ Sukha) and accused 5 (Jinda), along with others, faced, amongst others, a charge, under Section 302 IPC, on the ground that they had killed General Vaidya, retired Chief of Army Staff, and his wife. When the charges were framed at the trial, both these accused, along with others, pleaded not guilty and claimed to be tried; but barely two weeks thereafter, the accused 1, orally, informed the learned trial Judge that he had killed General Vaidya and he did not desire to contest the case. At a latter stage, when accused 1 was examined under Section 313 Cr.P.C., he made a statement to the effect that according to him, killing of General Vaidya was not a crime, because General Vaidya was responsible for conducting operation Blue Star, which had damaged a sacred religious place like the Akal Takht of the Golden Temple and, that is why, he had Crl. A. 147 (J) of 2005 Page 50 not pleaded guilty. The learned trial Judge gave time to accused 1 to reflect on the admissions, which he had made, and, on the date fixed, accused 1 presented a written statement, wherein also he had admitted to have fired four shots to General Vaidya and killed him. Even when his statement, under Section 313 Cr.P.C., was, later on, recorded, accused 1 owned the statement, which he had so made in writing (Ext.60A).
109. So far as accused 5, in Sukhdev Singh's case (supra), was concerned, he, having not pleaded guilty to the charge, continued to contest the case until he was examined under Section 313 Cr.P.C., wherein he made statements, in writing, admitting to have driven the motor cycle with accused 1 as a pillion rider and also admitting that the accused 1 had fired fatal shots on General Vaidya, while still sitting in the pillion seat. Accused 5 supplemented this statement by yet another statement, which he submitted, in writing, and proved as Ext. 922.
110. Thus, in Sukhdev Singh's case (supra), the two accused, in their oral as well as written statements, had made it clear that they believed that General Vaidya was responsible for conducting operation Blue Star, which had damaged Akal Takht, and it also injured the religious belief and sentiments of the Sikh community, and General Vaidya was, therefore, guilty of serious crime and they had merely executed him and, in doing so, they had not committed any crime whatsoever. These facts are clearly noted at Paragraph 46, 47 and 48 of the decision in Sukhdev Singh (supra).
111. It was in the above fact situation that it was submitted before the Supreme Court, on behalf of the two accused, in Sukhdev Singh (supra), Crl. A. 147 (J) of 2005 Page 51 that when there is no evidence or circumstance, appearing in the prosecution evidence implicating an accused with the commission of a crime with which he is charged, there is really nothing for the accused to explain and, hence, his examination would be wholly unnecessary and improper. In fact, it was submitted, in Sukhdev Singh (supra), that in such a situation, the accused cannot be questioned at all and his answers cannot be used in the evidence, which may have been adduced, and, hence, the statements, made by accused 1 and accused 5, during their examinations under Section 313 Cr.P.C., should be totally discarded. It was further suggested to the Court that the evidence, adduced by the prosecution, was so weak that even if such evidence was taken to have been proved, the Court would not be in a position to convict the two accused and, hence, in such circumstances, it was unnecessary to examine the accused under Section 313 Cr.P.C., for, the answers cannot be used for the purpose of filling up the gaps in the evidence, which the prosecution has adduced against them. This apart, the statements, made by the said two accused in Sukhdev Singh's case (supra), being admission of guilt, the question was as to whether the Court could have acted upon the said admission of guilt.
112. Reacting to the above submissions made in Sukhdev Singh alias Sukha (supra), the Supreme Court pointed out, as already indicated above, that at the stage of examination under Section 313 Cr.P.C., the Court does not sit on the judgment and so long as there is any incriminating evidence appearing against an accused, however weak such evidence may be, the court is duty bound to question the accused. Crl. A. 147 (J) of 2005 Page 52
113. Before proceeding any further, what is important to bear in mind is that though a statement, recorded under section 313 Cr. P. C., is not a statement made on oath and is not, strictly speaking, evidence; yet the statement, so made, can, indeed, be taken into consideration, at the trial, against the accused for the purpose of arriving at the guilt or otherwise of the accused. In no uncertain words, made the Supreme Court clear this position of law, when it observed and held, in Sukhdev Singh (supra), as follows:
"51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why, sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answer. Then comes sub-section (4), which reads : "313 (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. "
Thus, the answers given by the accused, in response to his examination, under Section 313, can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the inquiry or trial. See State of Maharashtra v. R. B. Chowdhari (1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 Cri LJ 95 ). This Court, in the case of Hate Singh Bhagat Singh v. State of M. B. (1953 Cri LJ 1933 : AIR 1953 SC 468), held that an answer, given by an accused under Section 313 examination, can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678 :
(1964) 1 Cril 730), this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three Judge Bench answered the question, it would be advantageous to reproduce the relevant observations at page 684-685 :
"Under Section 342 of the Code of Criminal Procedure by the first sub- section, insofar as it is material, the Court may, at any stage of the enquiry or Crl. A. 147 (J) of 2005 Page 53 trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence, shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing, in the evidence, against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation, if any, of the incident, which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under section 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession, proceed to convict him; but if he does not confess and, explaining circumstance, appearing in the evidence against him, sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety."
Sub-Section (1) of Section 313 corresponds to sub-section (1) of Section 342 of the old Code except that it, now, stands bifurcated in two parts with the proviso added thereto clarifying that in summons case, where the presence of the accused is dispensed with, his examination under clause (b) may also be dispensed with. Sub Section (2) of Section 313 reproduces the old subsection (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub- section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force.
[Emphasis is supplied]
114. From what have been observed and laid down in Sukhdev Singh (supra), it becomes transparent that if an accused person, in his examination under Section 313 Cr. P. C. , confesses to the commission of the offence (s) charged with, the Court may, relying upon such confession, proceed to convict the accused and it is only when the accused does not confess and/or the accused chooses to explain the circumstances appearing in the evidence against him or sets up his own version of the occurrence claiming to the effect that he had committed no offence, the statement of the accused, made during the course of Crl. A. 147 (J) of 2005 Page 54 examination under Section 313 Cr. P. C., can be considered in its entirety along with other pieces of evidence on record. To put it a little differently, there is no impediment in law for a Court to found conviction of an accused on his confession made by him during his examination under Section 313 Cr. P. C. and/or to rely upon an admission of facts, made by an accused, during his examination under Section 313 Cr.P.C.
115. It further logically follows from what have been observed and laid down, in Sukhdev Singh (supra), that an admission of a piece of evidence, which an accused may voluntarily make, at the stage of his examination under Section 313 Cr.PC., can be relied upon and there is no impediment, in law, in convicting an accused on such admission made in the statement under Section 313 Cr.PC. if such statement, taken in its entirety, in the light of the other evidence on record, proves beyond doubt that the accused is the one, who has committed the offence.
116. The legal position, as discussed above, with regard to the object and scope of Section 313 CrPC, is further reinforced by a three Judge Bench decision in State of U.P. vs. Lakhmi, reported in (1998) 4 SCC 336. In order to appreciate the law, on the use of the statement of an accused made under Section 313 CrPC, it is necessary to take note of the material facts of the case in Lakhmi (supra), wherein accused Lakhmi faced the charge of murder for having put his wife to death intentionally. Prosecution's case was largely based on the testimony of PW2 (Ramey). On the day of the occurrence, according to prosecution, Lakhmi inflicted blows with a phalli (a spade-like agricultural implement) on the head of the deceased. Her skull got smashed and she died on the spot. Ramey, who claims to have been working in the adjacent field, claimed that on Crl. A. 147 (J) of 2005 Page 55 hearing the screams of the deceased, he had rushed to the house of the accused and, on peeping through the windows, witnessed the accused smashing his wife's head by giving her blows with a phalli and, on hue and cry being raised by him (PW2), some neighbours, who heard the noise, came to the place of occurrence, broke open the door, which was bolted from inside, and overpowered the assailant. During the course of examination of the accused, under Section 313 CrPC, in Lakhmi (supra), one of the questions, put by the Court to the accused and the answer to the question read as follows:
"What have you to say about the evidence of Ramey (PW2) that he peeped through the window and saw you standing near her bed and you killed her with phalli (Ex. Ka-1) and Kunda (Ex. Ka-2)?"
The answer of the accused to the said question was this: "It was not like that. I murdered her with a kunda and not with a phalli."
117. The learned Sessions Judge, in Lakhmi (supra), convicted the accused and sentenced him to imprisonment for life. The High Court, while acquitting the appellant, held the evidence of PW2 (Ramey) was not credit worthy and at any rate, his evidence had received no corroboration from any other reliable evidence. While so acquitting the accused, the High Court did not attribute any importance to the answer, given by the appellant, which we have reproduced hereinabove, wherein, he had practically, admitted, that he had killed his wife.
118. In the circumstances, as mentioned above, the Supreme Court, in Lakhmi (supra), has pointed out that answers to questions put to the accused may be, on most of the occasions, flat denial or outright repudiation of those circumstances; but, in certain cases, the accused Crl. A. 147 (J) of 2005 Page 56 would offer some explanation to the incriminating circumstances and in very rare instances, the accused may even admit or own incriminating circumstances adduced against him, perhaps, for the purpose of adopting legally recognized defences. In all such cases, points the Supreme Court in Lakhmi (supra), the court gets the advantage of knowing the version of the accused about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance, appearing in the evidence against him, there is no warrant for the proposition that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.
119. Having pointed out that Sub-Section (4) of Section 313 amounts to a legislative guideline for the courts to give due weight to the answers, which an accused may give to the question put to him, the Court has clarified, in Lakhmi (supra), that when answers, given by an accused, contain admissions of circumstances appearing against him and when such admissions are not delinked from the evidence, such admissions can be used for arriving at a finding that the accused had committed the offence.
120. We, now, turn to yet another important question, namely, as to how far confession of an accused can become the basis for his own conviction and how does it differ from the confession of the co-accused?
121. We have already pointed out above that there is no bar in convicting any accused on his own confession. However, so far as the confession of a co-accused is concerned, it stands on, somewhat, different Crl. A. 147 (J) of 2005 Page 57 footing. The law, with regard to the use of confession of a co-accused, is well settled.
122. The present one is one of those very few cases, where two accused persons have made judicial confessions and while confession of an accused is relevant under sections 24 to 29 of the Evidence Act against himself, it is Section 30 of the Evidence Act, which makes the confession of a co-accused relevant. There is a marked difference between the probative value of the confession of an accused vis-a-vis the confession of a co-accused and this difference appears to have, quite often, created confusion and incorrect approach, though the law, on the use of the two kinds of judicial confessions, is very well settled. The confession, made by an accused, if found voluntary and true, can be made basis for his own conviction. Though corroboration of such a confession is not legally a condition precedent for making use of the confession as basis for conviction, prudence requires that some corroboration of the material particulars of the confession is received from the evidence on record. As against such use of confession against the maker of the confession, the confession of a co-accused is no evidence at all and it cannot be used as a foundation for conviction of the accused, who is not maker thereof, though the same can, indeed, be used for lending support to the conclusion of guilt of the accused, who is not the maker thereof.
123. The reasons for not treating the confession of a co-accused as evidence are, broadly speaking, that the confession of a co-accused is not given on oath, it is neither given in the presence of the accused against whom the confession is sought to be relied upon nor is the maker's Crl. A. 147 (J) of 2005 Page 58 version is tested by cross-examination. In fact, such a confession is a weaker type of evidence than the evidence of an approver, for, the approver is cross-examined by the accused, whereas the confession of a co-accused is not subjected to cross-examination and brought on record without allowing the accused, against whom such a confession is sought to be proved any opportunity of cross-examining the co-accused and testing the veracity or otherwise of the confession of the co-accused. A confession is relevant against the maker, because the maker implicates himself in a crime; but the confession of the co-accused differs in this regard inasmuch as it is some one else's confession, which is sought to be used against a person, who never owned up the guilt or the truth of the confession of his co-accused. (See Bhuboni Sahu V. The King, 76 Ind. App. 147, and Emperor vs Lalit Mohan, 12 Cr. LJ2 (Cal).
124. A co-accused, who confesses his guilt, stands on no better footing than an accomplice. The law insists that the accomplice's evidence be not used without corroboration. Prudence demands that when such an accomplice implicates another, then, the person, who is so implicated, has a right to test the evidence given against him by his co-accused; but no such opportunity is available in law to the person so implicated by his co- accused. The resultant effect is that the confession of a co-accused is used against another accused without giving him any opportunity of testing the veracity of the confession by cross-examining the maker thereof.
125. No wonder, therefore, that the Supreme Court has laid down that the confession of the co-accused is not really 'evidence' in its strict sense and cannot be made foundation for conviction of the person, who did not Crl. A. 147 (J) of 2005 Page 59 make the confession, though such a confession can be used as an additional reason for believing the evidence on record provided that the evidence on record, independent of the confession of the co-accused, convinces the court of the guilt of the accused against whom such a confession is relied upon or is sought to be relied upon. A reference, in this regard, may be made to Kashmira Singh Vs. The State of Madhya Pradesh (AIR 1952 SCI 59), wherein the Supreme Court observed and laid down as follows:
"..........The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 8. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course it is not necessary to call the confession in aid. But cases may arise, where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and, thus, fortify himself in believing what without the aid of the confession he would not be prepared to accept. "
126. Thus, the above observations made, in Kashmira Singh (supra), were in respect of Section 30 of the Evidence Act, that is, for using the confession of a co-accused and, hence, the decision in Kashmira Singh (supra) becomes relevant, when the confession of a co-accused is sought to be used as basis for conviction. In short, Kashmira Singh (supra) lays down the law with regard to use of the confession of a co-accused.
127. Drawing the distinction between the use of confession against its maker under Section 24 of the Evidence Act and the use of the confession Crl. A. 147 (J) of 2005 Page 60 against a co-accused under section 30 of the Evidence Act, the Supreme Court, in K. I. Pavunny (supra), observed and held as follows:
"21. In Kashmira Singh's case, the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant, Kashmira Singh. In that context, Bose, J. speaking for a Bench of three Judges, laid down the law that the court requires to marshal the evidence against the accused excluding the confession altogether from consideration. If the evidence dehors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The court considered the evidence, led by the prosecution, dehors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant, Kashmira Singh, of the charge of murder. The appellant was acquitted of an offence under Section 302 IPC, but was convicted for the offence under section 201 IPC for destroying the evidence of murder and sentenced him to seven years' rigorous imprisonment.
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23. In Haricharan Kurmi Vs. State of Bihar, a Constitution Bench was to consider as to when the confession of co-accused would be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co- accused can not be treated as substantive evidence. If the court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deductible from the said evidence, the confession of the co-accused would be used. It was, therefore, held that the court would consider other evidence adduced by the prosecution. If the court on confirmation thereof forms an opinion with regard to the quality and effect of the said evidence, then, it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the accused. It is, thus, seen that the distinction has been made by this court between the confession of an accused and uses of a confession of the co-accused at the trial. "
(Emphasis supplied)
128. Thus, what emerges from the above discussion is that before using the confession of a co-accused, the Court has to, first, marshal the evidence against the accused, who is sought to be roped in with the help Crl. A. 147 (J) of 2005 Page 61 of the confession of the co-accused, and if, on such marshalling of evidence, the Court finds that independent of the confession of the co- accused, the evidence on record reveals sufficient incriminating materials for believing the complicity of the accused in the offence, then, in such an event, the confession of the co-accused can be used as a supporting piece of evidence for lending assurance to the other evidence on record and in order to fortify the court's belief that the conclusion that it had reached, namely, that the accused is guilty, is correct.
129. In short, the confession of a co-accused is not substantive piece of evidence on which can rest the entire foundation for conviction of the accused, who is not the maker of the confession. Far from this, confession of a co-accused can be used merely for the purpose of lending assurance to the conclusion already reached by the court that the accused, against whom the confession of a co-accused is sought to be used, already stands proved to have committed the offence. It is in this context that the decisions in Kashmira Singh (supra) and Haricharan Kurmi (supra) need to be read. There is no impediment, we feel impelled to clarify, in basing the conviction of an accused on his own confession if the confession is found to be voluntary and true, though, generally, corroboration of such- a confession is desirable.
130. In the case at hand, the confession made by the accused-appellant, Ram Tossa, coupled with the corroboration both oral as well as medical, which his confession receives from the other evidence on record, there can be no escape from the conclusion that Phani Misir was put to death by the accused-appellant, in the company of the co-accused, Petu Goala, Crl. A. 147 (J) of 2005 Page 62 in the manner as revealed by the accused-appellant, Ram Tossa, himself. That apart, even the judicial confession of the co-accused, Petu Goala, is an additional circumstance against the appellant, Ram Tossa, and the confession of the co-accused, Petu Goala, lends assurance to the conclusion, which we have unhesitatingly, reached, the conclusion being that the accused-appellant, Ram Tossa, was one of the persons, who had intentionally caused the death of Phani Misir.
131. What is, now, imperative to note is that we have already held that the confession, made by the accused-appellant, Petu Goala, too, is voluntary. When the confession made by this co-accused, namely, Petu Goala, is carefully scrutinised, it transpires that even this confession has received credible corroboration from the medical and other oral evidence apart from the fact that even this accused-person's description of the occurrence, leading to the death of Phani Misir, is, generally, in tune with the version of the occurrence given by accused appellant, Ram Tossa.
132. What is important to note is that there must be general corroboration of the confession by the materials on record and the corroboration need not be with mathematical accuracy. This aspect of the matter is easily discernible from the decision in Pyare Lal Bhargava (supra), wherein it was contended that the accused-appellant No. 2, in his confession, did not own up that he, too, had stabbed, at least, one of the two deceased. The Supreme Court did not pay any importance to this aspect of the matter on the ground that when the confession is read as a whole, the same leave no doubt that the accused appellant No. 2 had admitted the complete role played by him in association with other Crl. A. 147 (J) of 2005 Page 63 assailant for causing death of their two victims, the relevant observations of the Supreme Court in Pyare Lal Bhargava (supra), run as follows:
"17. Shri Vishwanathan, then, contended that A-2, in his confession, did not own that he also stabbed, at least, one of the two deceased. That does not matter much, because a reading of the confession, as a whole, leaves no doubt that A-2 has admitted the full length role played by him in association with the other two assailants for murdering the two ladies. Hence, the very fact that he did not say in so many words that he also inflicted one stab injury on the deceased is of no consequence. In a way, this aspect is a further assurance to us that his confession was not what the police wanted him to say to the magistrate. "
133. In Balbir Singh Vs. State of Punjab (AIR 1957 SC 216), when it was suggested that the confession of the two accused should be read together in order to condemn both, for, both the confession were inconsistent with, and contrary to, each other, the Supreme Court held and observed as follows:
"So far as the confessional statement of Jagir singh is concerned, it may be taken into consideration against the appellant if it fulfils the conditions laid down in Section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. On reading Jagir Singh's confession as a whole, it appears that he was really trying to throw the main blame on the appellant, though he admitted that he entered into the house of Mst. Chinti, brought out a kirpan lying there, and took some silver ornaments from that house. He denied that he had anything to do with the murder of the two boys; he more or less tried to make out that he was an unwilling spectator of the crime committed by the appellant. In these circumstances, the utmost that can be submitted, on behalf of the appellant, is that the confession of Jagir Singh should not be used at all against the appellant. At one stage of his argument, Mr. Sethi did submit that the confession of Jagir Singh should be excluded altogether from consideration against the appellant; later, however, he submitted that both the confessions should be read together in order to condemn both as untrue on the ground of the difference between the two confessions. We are unable to accept this submission of Mr. Sethi. We have pointed out that some of the differences are immaterial, some are due to the Crl. A. 147 (J) of 2005 Page 64 desire of Jagir Singh to throw the blame on the appellant -- a circumstance of which the benefit has been given to the appellant -- and some other differences are clearly resolved by other evidence on the record. We do not think that in these circumstances, the confessional statements can be condemned out of hand or in limine as untrue. "
134. In this case, both the confessions were retracted subsequently, and the proper approach in case of this nature is to consider each confession as a whole on its merits and use it against the maker thereof, provided the Court is in a position to come to an unhesitating conclusion that the confession was voluntary and true; and though a retracted confession, if believed to be true and voluntarily made, may form the basis of a conviction, the rule of practice and prudence requires that it should be corroborated by independent evidence. "
135. Referring to the decision in Balbir Singh (Supra), the Supreme Court, in its later decision in K. I. Pavunny (Supra), observed as under:
"This Court upheld the conviction and held that it is no necessary that each item of fact or circumstances mentioned, in the confessional statement, requires to be corroborated separately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira singh case was referred to."
136. Thus, the principle, deducible from the decisions in Balbir Singh (supra), Pyare Lal Bhargava (Supra) and K. I. Pavunny (supra), is that a confession, made by an accused, can be relied upon if the Court is satisfied that the same is voluntary and true. Such a confession can be treated as true if it receives general corroboration from the evidence on record and it is unwise for the court to read together two confessions, made by two accused persons, and condemn both even though both the Crl. A. 147 (J) of 2005 Page 65 confessions are found to be voluntary and the inculpatory parts thereof receive general corroboration from the remaining evidence on record.
137. In the light of the position of law, as discussed above, when we, for a moment, revert to the case at hand, we notice, as already pointed out above, that there are some admissions on the part of the present appellant and his co-accused Petu Goala. In the case of the present appellant, he admits that when the dead body of Phani Misir was brought to the said police station, the appellant and his co-accused, Petu Goala, were present at the police station. While, however, the appellant claims that they did not go to the police station on their own, his co-accused, Petu Goala, clearly states, in his examination under Section 313 Cr.PC., that the two had appeared at the police station on their own will. This apart, we have also discussed above the evidence, which corroborate the confession made by the accused-appellant notwithstanding the fact that the appellant has denied some of the incriminating evidence on record and has also claimed that he had put his signature on the confessional statement on being asked by the police. Why this part of the evidence, which the appellant has offered, while being examined under Section 313 Cr.PC., cannot be believed.
138. Coming to the examination of the co-accused, Petu Goala, under Section 313 Cr.PC., as we have already pointed out above, that he has specifically stated that the axe was seized from the appellant, Ram Tossa, and that both of them had appeared voluntarily at the police station. In fact, in his examination, under Section 313 Cr.PC., the co-accused, Petu Goala, has also clearly stated that having arrived at the police station, the Crl. A. 147 (J) of 2005 Page 66 appellant, Ram Tossa, had handed over the axe and both of them had revealed their names.
139. Even coming to the confessional statement made by the appellant and his co-accused, Petu Goala, the answer of the co-accused, while being examined under Section 313 Cr.PC., was that they had made the confession voluntarily to the effect that Ram Tossa and he (Petu Goala) had killed Phani Misir. This, undoubtedly, is the confession of the co- accused, Petu Goala, and though this confession is not substantive evidence against the present appellant, the fact remains that in the light of the other evidence, which we have discussed above, appearing against the present appellant including his judicial confession, the admission so made by co-accused, Petu Goala, to the effect that the appellant and he (Petu Goala) had killed Phani Misir can be used for the purpose of lending assurance to the conclusion, which this Court has, otherwise, reached.
140. Above all, when asked if he has anything else to say, in his examination under Section 313 Cr.PC., the co-accused, Petu Goala, replied by saying that having killed Phani Misir, Ram Tossa, i.e., the present appellant, took him (Petu Goala) along and appeared at the police station. Thus, the conclusion, which is irresistible, is that apart from the fact that the appellant, Ram Tossa, who has, otherwise, been proved, on the basis of the evidence on record, to be guilty of the offence, charged with, the admission made by the co-accused, during the latter's examination under Section 313 Cr.PC., lends support to the conclusion of guilt, which, we have, otherwise, reached against the present appellant. Crl. A. 147 (J) of 2005 Page 67 This apart, the admission, made at the stage of examination of an accused, under Section 313 Cr.PC., or confession offered at the stage of examination of an accused under Section 313 Cr.PC, cannot be ignored and/or wished away and the Court has to take the same into consideration along with other evidence on record. When the admissions made by the co-accused, Petu Goala, and his confessions, made at the stage of examination under Section 313 Cr.PC, are taken into account, there remains no doubt that his admissions and confessions, even at the stage of examination under Section 313 Cr.PC, lends considerable force and substantive support to the conclusion of guilt, which we have, otherwise also, reached against the accused-appellant.
141. In the present case, when confession of the two accused are considered independent of each other, it clearly transpires, as already held above, that the confession, made by the present appellant, is voluntary and true inasmuch as the same has received general corroboration from the evidence on record.
142. On the basis of the confession, which has been made by the accused-appellant, supported by the oral and medical evidence on record, it was sufficient to hold, and we do hold, that he has been proved to be guilty, beyond reasonable doubt, of the charge framed against him under Section 302 read with Section 34 IPC. This apart, the conclusion, which we have so reached, is amply supported by the confession of the co-accused, Petu Goala, and the admission made by him, while he was examined under Section 313 Cr.PC. Considered in this light, there can be no escape from the conclusion, and we do conclude, that the present Crl. A. 147 (J) of 2005 Page 68 appellant has been rightly convicted of the charge framed against him and his conviction does not call for any interference. Even the sentence, passed against him, is in accordance with law and cannot be interfered with.
143. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed.
144. Send back the LCR.
JUDGE JUDGE rk Crl. A. 147 (J) of 2005