Orissa High Court
Ganesh Prasad Singh vs State Of Orissa on 18 September, 1986
Equivalent citations: 1986(II)OLR514
JUDGMENT G.B. Pattnaik, J.
1. The petitioner has been convicted Under Section 394, IPC, and, has been sentenced to undergo rigorous imprisonment for four years by the learned Additional Sessions Judge, Sambalpur. Nine accused persons including :he petitioner stood their trial Under Section 395, IPC, on the allegation that they committed dacoity in the night of 18-11-1979 in the house of one Prabhudayal Agarwala of village Banabira under Sohela Police Station before the learned Assistant Sessions Judge, Sambalpur and seven of them were acquitted of the charge Under Section 395, IPC, but the petitioner and one Dilip Kumar were convicted Under Section 395 IPC. and were sentenced to undergo rigorous imprisonment for four years. On appeal the Additional Sessions Judge acquitted accused Dilip Kumar and altered the conviction of the petitioner to one Under Section 394, IPC, but maintained the sentence of rigorous imprisonment for four years.
2. The prosecution alleged that oh 18-11-1979 at night there was a dacoity in the house of P. W. 9 during midnight while all the inmates of the house were asleep. Some 10 to 12 persons armed with deadly weapons and crackers came to the house and asked P. W. 9 to open the door, but when P. W 9. refused to oblige them, the dacoits broke open the door and after assaulting the inmates Of the house removed the cash and ornaments. Some of the inmates were injured. P. W. 9 called aloud for help of the villagers and before arrival of the villagers the dacoits left the house with the booty, P. W. 6 who is also an inmate of the house lodged the First Information Report at Sohela Police Station. The police registered a case Under Section 395 IPC, and sent requisition for medical examination of the injured persons. The police then investigated into the offence, made some seizure and conducted a Test Identification Parade. Confussional statements of some of the accused persons were also recorded and on completion of investigation, the charge -sheet was filed against nine accused persons.
3 The defence plea is one of denial.
4. In support of the prosecution case 26 witnesses were examined on behalf of the prosecution and none for the defence The trial Judge acquitted the seven accused persons but convicted accused Dllip Kumar on the basis of his identification in a Test Identification Parade and convicted the present petitioner on the basis of the judicial confession made by him before a Magistrate. On appeal the learned Additional Sessions judge has held the Test Identification Parade to be inadmissible and accordingly acquitted accused Dilip Kumar but relying on the confessional statement of the petitioner, has convicted the petitioner Under Section 394, IPC, and hence the revision.
5. Mr. Misra, the learned counsel for the petitioner, contends that the confession (Ext. 4) which is the sole basis of conviction cannot be said to be 'voluntary, and, therefore, cannot form the basis of conviction, particularly when there is no other corroboration to the said confession and the confession has been retracted during trial. According to Mr. Misra the petitioner was produced before the Magistrate from the police cus- tody on 4-2-1980 at 1 P. M. and the Magistrate recorded the confessional statement also at 1 P. M. without giving any time to the petitioner for a cool reflection and in such circumstances, the confessional statement cannot assume the character of a voluntary one. Sub-section (2) of Section 164 of the Code of Criminal Procedure casts an obligation on the Magistrate that the Magistrate shall not record any confession unless he has reason to believe that it is being made voluntarily and once it is held that the confession recorded by a Magistrate is not voluntary, the same cannot be utilised for any purpose. There cannot be any dispute over the proposition that before a confessional statement made Under Section 164 can be acted upon, it must be shown to be voluntary The two essential requirements of a valid confession are that it is voluntary and it must be true In order to come to a conclusion that the confession is voluntarily made, it is. tie duty of the Magistrate to record the circumstances under which the confession is made showing in whose custody the prisoner was and how far he was a free agent. A confession made by an accused after he is in police custody for some time cannot be rejected on that sole ground but it must be always viewed with suspicion, and the Magistrate therefore, has a duty to be careful to ascertain as to how long such a person has been under the influence of the police. (See AIR 1949 Ori. 67 Gurubari Praja and Anr. v. The King). When a Magistrate records a confession of a prisoner afresh from the hands of the police, the Magistrate would ' exercise a sound discretion, if he gives some time to the accused to allow him to think over the question independent of the influence of the police and to decide whether he would make a confession or not. (See AIR 1978 S. C. 1399 Shankaria v. State of Rajasthan). But how much time should be allowed is a matter clearly lies within the discretion of the Magistrate and no hard and fast rule can be laid down. But Courts have held that it is desirable that on the date on which the confession of an accused is recorded, the accused should be given some time for reflection in addition to the time for reflection already allowed to him when he is remanded to jail custody after his production for recording confession. In the case of Daman Mohanta v. The State, 26(1960) CLT 14, a Bench of this Court held :
" It is desirable that on the date on which a confession is recorded the accused is given some more time for reflection by being allowed to sit in a corner of the Court room after the usual caution is given. This is irrespective of the time of reflection allowed to him when he is remanded to jail custody after his production before a Magistrate. The necessity for thus giving him further time for reflection arises mainly because the accused is produced in Court from jail, in the custody of police constables and some further time should be given to remove all traces of any influence that might have been produced in the mind of the accused when he was marched in police custody from the jail to the Court room".
In this particular case, however, the accused had been produced before the Magistrate on September 15, 1958 and he was remanded to jail custody for two days and was again produced before the Magistrate on September 17, 1958 when his confessional statements were recorded. Therefore, interval of 48 hours between the release of the accused from the police custody and his making of confession was held to be sufficient to remove the traces of police influence from the mind of the accused. In the case of Babu Singh v. State of Punjab, 1964 (I) Crl. Law Journal 566, the Supreme. Court held that time of one hour given to the accused for cool reflection was wholly insufficient and held the confession to be inadmissible on that score. The law on the subject has been fully discussed In the Full Bench case of this Court in the case of Satyabhama Debi v. Tauli Jena , 1977 CLR 176 ( F.B. ). It has been held in the said case :
" The essential principles are :
(i) Under Anglo Saxon jurisprudence, the whole burden to establish the charge in a criminal offence lies on the prosecution. Where the prosecution relies upon a confessional statement of the accused in proof of the charge, strict compliance with provisions of Section 164 of the Code of Criminal Procedure is imperative ;
(ii) It is essential that the Magistrate before recording the confessional statement must explain to the confessing accused that he is not bound to make a confession and that if he makes a confession it may be used as evidence against him. The Magistrate should also question the accused with a view to ascertaining whether the accused is making the confession voluntarily and on such questioning he should have reason to believe that the confession is being made voluntarily ;
(iii) Where there is substantial compliance with the requirements of Section 164(3) of the Code' of Criminal Procedure, reliance can be placed on the provisions of Sections 29 and 80 of the Evidence Act and any non-compliance with the provisions of Set. 164 of the Code of Criminal Procedure may be regularised by application of Section 533 of that Code;
(iv) The bare certificate in the prescribed form with nothing more would not satisfy the requirements of Section 164,of the Code, A mere failure; however, to record all the questions put to the confessing accused does not necessarily entail the rejection of the confession as inadmissible. As long as there is substantial compliance evidence aliunde is available to conver the lacunae and the recording Magistrate may be examined in support of the compliance of the formalities.
(v) Whether a confession has been properly recorded or not must be left to be decided by the Judge before whom it is tendered as evidence and admissibility would ordinarily depend upon several facts in a given case and it would not be appropriate to lay down any hard and fast rule regulating admissibility".
(Quoted from the head-note) Applying the tests laid down in the aforesaid case with the facts of the present case, I am firmly of the opinion that the, confession cannot assume the character of a voluntary one. Ext. 4 itself indicates that the accused was produced before the Magistrate at Padampur on 4-2-1982 at 1 P,M. and Ext. 4 clearly indicates that the Magistrate has not ascertained from the accused as to since how long he was in the custody of the police. The evidence of the Investigating Officer indicates that he was arrested on 3rd and was produced straight away before the Magistrate on 4th. The evidence of the Magistrate shows that the confessional statement of accused Ganesh Prasad (the petitioner) was recorded at 1 P. M. Thus there was no time-lag between the production of the accused from the police custody before the Magistrate, and the recording of the confessional statement by the Magistrate. The Magistrate in his evidence, however stated that he gave one hour time to the accused for reflection, but such evidence is contrary to the records of the case and, therefore, cannot be accepted. In that view of the matter, there is no option than to hold that the confession in question is not a voluntary one and consequently cannot be acted upon. That apart, it is an accepted rule of prudence that retracted confession is always open to suspicion and should not be acted upon unless it is corroborated by credible independent evidence It is true that corroboration need not be in respect of each and every circumstance mentioned in the confessional statement. But it is a duty of the Judge to find out whether there is at least a general corroboration in some material particulars to a retracted confession. In the case in hand, however, there is no corroboration from any independent evidence, either oral or circumstantial, to any part of the confessional statement. In the result, the confessional statement (Ext. 4) cannot be utilised for convicting the accused. Since the confessional statement was the only basis of the conviction of the accused-petitioner, the conviction of the petitioner cannot be sustained. I would, therefore, set aside the conviction and sentence passed against the petitioner and acquit him of the charge levelled against him.
The criminal revision is accordingly allowed. The bail bond furnished by the petitioner stands cancelled.