.FO 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1344 of 1993 With CRIMINAL APPEAL No 96 of 1994 With CRIMINAL APPEAL NO. 165 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE S.D.DAVE and Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? - YES JJJ 2. To be referred to the Reporter or not? - YES JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 3. Whether Their Lordships wish to see the fair copy of the judgement? - NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? - NO 5. Whether it is to be circulated to the Civil Judge? - NO -------------------------------------------------------------- PATEL HIMAT MOHANBHAI Versus STATE OF GUJRAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1344 of 1993 MR AD SHAH for Appellant MR. S.T.MEHTA, LD.PUBLIC PROSECUTOR for Respondent 2. Criminal AppealNo 96 of 1994 MR KIRIT RAWAL for Appellant MR. S.T.MEHTA, LD.PUBLIC PROSECUTOR for Respondent 3. Criminal Appeal No. 165 of 1994 MR. S.T.MEHTA, LD.PUBLIC PROSECUTOR for Appellant Mr. A.D. SHAH, Ld. Counsel for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE S.D.DAVE and MR.JUSTICE H.R.SHELAT Date of decision: 19/08/96 CAV COMMON JUDGEMENT Per: Dave, J:- Criminal Appeal No. 1344 of 1993 has been filed by the original accused No.2, who has been convicted for the commission of the offence punishable under Section 201 I.P.Code. The Criminal Appeal No. 96 of 1994 has been filed by the original accused No.1, who has been convicted for the commission of the offences punishable under Section 302, 364, 404 and 201 I.P. Code. The Criminal Appeal No. 165 of 1994 has been filed by the State because they are aggrieved and dissatisfied with the orders of acquittal- qua the original accused No.2 of other offences for which the accused no.1 has been found guilty. These three appeals, arising from one and the same judgment of conviction and sentence have been heard together and shall be decided and disposed of by the present orders under the Common Judgment. Two accused persons, namely Nagjibhai Patel and Himatbhai Patel were tried for the alleged commission of the offences punishable under Section 302, 364, 201 and 404 read with Section 114 I.P.Code, on the accusation that, on March 13, 1993 at about 9.00 p.m. they had abducted deceased Nareshbhai Valjibhai Patel with a view to take away the golden chain of the value of Rs.8500-00 at Village, Chogath under the Umrala Taluka of the Bhavnagar District, and later on the accused no.1 had given him dharia blows, which had resulted in to his death. It was also the case of the prosecution that the golden chain belonging to the deceased was removed from over the dead body and later on, with a view to destroy the evidence of the commission of the offence of murder, the accused persons had buried the dead body of the deceased in the outskirts of Village Chogath. This case of the prosecution becomes apparent while reading the charge at Exhibit - 3. The case of the prosecution is that, Nareshbhai Patel used to stay at Surat and used to run a medical store there in company of his brother. The deceased had gone to village Chogath on March 11, 1993 with a plan to stay there for a period of ten days, so that the Satsang of a Swamiji which had already commenced in the village could be attended by him. On March 13, 1993, Naresh had attended the Satsang but had not returend to his house, and therefore on the next day the members of the family were in his search. The elder brother of the deceased, namely, Ghanshyambhai who was staying at Surat was also called. Ghanshyambhai in his turn had made every efforts to trace the deceased, but having failed in his pursuits he had informed the police, on 16th March 1993. On the very same day at about 4 to 5 p.m. the members of the family in anxiety were waiting at the house of the deceased and at that time PW - 5 Rasikbhai, Exhibit - 22 and PW - 6 Dineshbhai, Exhibit - 35 had approached them and had informed them that, the accused no.1 had confessed before them that the deceased has been murdered by himself and Nagjibhai, and that the dead body has been buried at the outskirts of the village. It appears that the village people, including the members of the family of the deceased had gone to the spot of the burial and later on police was informed. A formal complaint came to be filed before Umrala police on 17th March 1993 at about 8.30 p.m. The offences came to be registered against the appellants accused. They were later on apprehended. It is the case of the prosecution that, during the investigation there was a confession before the learned JMFC, Vallabhipur-Umarala by the accused No.2 Himatbhai Patel. Certain discoveries were also made and later on the accused persons were charge sheeted. The charge at Exhibit - 3 to which a reference has been made earlier came to be denied by the appellants accused. Placing reliance upon the evidence on record, the learned Addl. Sessions Judge, Bhavnagar, vide his judgment of conviction & sentence dated October 30, 1993 has convicted and sentenced the appellants accused. It is therefore that the present appeals have been filed by the two accused persons and by the State. Learned counsel Mr. A.D.Shah, who appears on behalf of the original accused No.2 in Criminal Appeal No. 1344 of 1993 has urged that, the entire case of the prosecution hinges upon two confessions, one a judicial confession and the other one an extra judicial and certain alleged discoveries and circumstances, but that, reading of the evidence as a whole would go to show that no reliance could have been placed upon the prosecution evidence. Learned counsel Mr. Kirit Rawal who appears on behalf of the original accused no.1, the appellant in Criminal Appeal No. 96 of 1994 while adopting the arguments advanced by the learned counsel Mr.Shah has urged that, there is absolutely no evidence upon the basis of which the original accused no.1 could have been convicted and sentenced. Replying the above said contentions coming from the learned counsel for the appellants and buttressing the case of the State, learned Government Counsel Mr.S.T. Mehta has urged that, both the above said appeals filed by the appellants require to be dismissed, but the appeal filed by the State requires to be allowed, by saying that; original accused No.2 is also guilty of the offences punishable under Section 302, 364 and 404 I.P.Code. At the out set, it shall have to be appreciated that, the case of the prosecution really, as pointed out by learned counsel Mr. Shah hinges upon four branches of evidence, namely (i) a judicial confession, (ii) an extra judicial confession, (iii) the alleged discoveries, and (iv) certain circumstances. With a view to appreciate the contentions coming from learned counsels for the appellants and learned Government Counsel Mr. Mehta, the scrutiny of the prosecution evidence appears to be necessitous. Firstly taking up the case of the prosecution regarding the judicial confession, the reference requires to be made to the oral testimony of PW - 10 Sureshchandra Tanna, Exhibit - 40, who at the relevant time was working as a JMFC at Vallabhipur-Umarala. According to the evidence tendered by him before the Court, the police had forwarded the accused so that his confessional statement under Section 164 Cr.P.C. could be recorded by him. According to learned Magistrate Mr. Tanna, he had asked the accused to appear before him on the next day and that when he had appeared before him on the next day he was given some time. Learned Magistrate says in his evidence that, the accused No.2 Himatbhai Patel had given a confession before him which came to be recorded by him. The said confession has been presented before the Sessions Court at Exhibit - 41 A. Learned Magistrate Mr. Tanna has said that, he had made it clear to the accused No.2 that, under the law he was not bound to make any confession before him and that, if he prefers to make such a confession, the same could be utilised against him. Learned Magistrate says further that, despite this cautioning, accused No.2 had given the confessional statement which came to be recorded by him, which is at Exhibit - 41A. Thus the learned Magistrate who has recorded the confessional statement of the original accused No.2 makes it abundantly clear that the exercise performed by him was a double faceted one in as much as, he has made it abundantly clear, before the accused No.2 that, he was not bound to make a confessional statement and secondly that, if he make such a statement, the same could be utilised against him as the evidence. During the cross examination the learned Magistrate admits that when the accused No.2 was brought to him on the previous day he had told him to come on the next day and that, except this nothing had transpired between him and the accused No.2. Because of the above said evidence tendered by the learned JMFC, Mr.Tanna, there is the contention coming from the learned counsels for the appellants that the above said confessional statement cannot be said to be a genuine confessional statement which could be taken into consideration. The reliance is sought to be placed upon the Supreme Court decision in case of Shivappa, Appellant Vs. State of Karnataka, Respondent, Crimes, 1995(1), page-138 (AIR 1995 S.C. page 980). The Supreme Court has made it abundantly clear that the administration of the caution to the accused that he was not bound to make a statement and that, if he did make a statement, that may be used against him as evidence would not be sufficient. The Supreme Court says that, the Magistrate must disclose to the accused that he was a Magistrate and that the confession was being recorded by him in that capacity. The Magistrate is also required to inquire as to whether the accused has been influenced by anyone to make any such confession. The Magistrate also would be required to lend assurance to the accused that he would not be sent back to police custody in case he did not make the confessional statement. The Magistrate recording the confessional statement also should question the accused as to why he wanted to make the confession or as to what had prompted him to make the confession. The whole picture, regarding the exercise which according to Supreme Court is required to be performed by a Magistrate recording the confessional statement under Section 164 I.P. Code, becomes clear from what the Supreme Court has said at para-7 of the judgment. With a view to be specific and succinct in our say, we prefer to extract the entire paragraph from the pronouncement of the Supreme Court, which runs thus:- " 7. From a perusal of the evidence of P.W.17, Shri Shitappa, Addl. Munsif-Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but P.W.17 did not disclose ot the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by any one to make the confession. P.W.17 stated during his deposition in court "I have not stated to the accused that I am a Magistrate" - and further admitted "I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement". The Magistrate P.W.17 also admitted that "at the time of recording the statement of the accused no police or police official were in the open Court. I can not tell as to whether the police or police official were present in the vicinity of the Court". From the memorandum prepared by the Munsif Magistrate P.W.17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar P.W.25 admitted that the sub jail, the office of the Circle Police Inspector and the Police Station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub jail, as ordered by the Magistrate on 21.7.1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22.7.1986 before the Magistrate. That apart, neither on 21.7.1986 nor on 22.7.1986 did the Munsif Magistrate P.W. 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate P.W.17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 Cr.P.C. was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant. Under these circumstances, the confessional statement was required to be ruled out of consideration to determine the guilty of the appellant. Both the trial court and the High Court, which convicted the appellant only on the basis of the so called confessional statement of the appellant, fell in complete error in placing reliance upon that statement and convicting the appellant on the basis thereof. Since, the confessional statement of the appellant is the only piece of evidence relied upon by the prosecution to connect the appellant with the crime, his conviction cannot be sustained. " When the evidence of learned Magistrate Mr. Tanna at Exhibit - 40 is referred, it is abundantly clear that, he had, of course, cautioned the accused No.2 that he was not bound to make any confession and that, if he prefers to make any confession before him, the said could be utilised against him as the evidence. But, excepting this, the learned Magistrate has not done anything more. He has not preferred to perform the entire exercise as pointed out by the Supreme Court in detail in the above quoted paragraph. It could not be urged that Mr. Tanna had made it clear before the accused No.2 that he was a Magistrate and that the confession was being recorded by him in that capacity. Mr. Tanna has also not made any inquiry to find out whether the accused no.2 had been influenced by any one to make the confession. Mr. Tanna has also not made it sure as to whether the police had induced the accused No.2 to give the statement. It was also not assured to accused No.2 that he would not be sent back to police custody, in case he did not make the confessional statement. In the same way the learned Magistrate had not questioned the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. Thus, it appears that the learned Magistrate has not performed the requisite exercise for recording a confessional statement as pointed out by the pronouncement of the Apex Court and that, he had satisfied himself, only by cautioning accused No.2 that, he was not bound to make any such confessional statement and that; if he prefers to make any such statement the same could be utilised against him in evidence. Because of this infirmities, in our opinion no reliance whatsoever could have bene placed upon the said confessional statement at Exhibit - 41A which later on during the examination of the said accused under Section 313 of the Cr.P.C. 1973 came to be retracted by him. If the confession made by the accused No.2 before the learned JMFC Mr. Tanna is taken out of the zone of consideration, the emphasis shall have to be on the scrutiny of the evidence tendered by the prosecution to show that, there was an extra judicial confession made by the accused in this respect. Before going to the evidence of two witnesses, PW -5 Rasikbhai Exhibit -22 and, PW -6 Dineshbhai, Exhibit 35 in whose presence the alleged extra judicial confession came to be made by the accused, a reference requires to be made to the evidence of complainant Gordhanbhai PW-1, Exhibit - 15. According to him two witnesses Rasikbhai and Dineshbhai had approached him with the information that the accused No.2 has told them that, they have murdered the deceased and that, the dead body is lying buried in the field. According to complainant Gordhanbhai, meanwhile the village people had come there in company of the two accused persons and they had shown the spot where the deceased was lying buried. But this later say of complainant Gordhanbhai appears to be a clear afterthought and an addition to his original case before the police, because this important version in respect of the accused persons showing him and the village people the spot where the dead body was found to be buried, was not given to the police in the FIR. When a reference is made to the FIR at Exhibit - 16, it is abundantly clear that no such mention has been made therein. When complainant Gordhanbhai was confronted with this situation, he has in fact admitted candidly before the Court that, he has not stated in the FIR before the police that both the accused persons were in their company when they had gone to the spot where the dead body was lying buried, and that, the accused persons had shown them the spot. He has also stated in his evidence that he does not know as to who had shown the spot to the police. Therefore, before proceeding ahead to examine the evidence of two witnesses, namely, Rasikbhai and Dineshbhai, it shall have to be noticed that the say that the two accused persons were present and they had shown the spot, is clearly an afterthought and that, in all probability, this afterthought had generated with a view to connect the accused persons with the commission of the crime. Going to the evidence of PW - 5 Rasikbhai at Exhibit - 22, it appears that he and Dineshbhai, the other witness had taken Himatbhai the accused No.2 in confidence and had promised that if he tells the truth nothing is going to happen to him. The say of Rasikbhai further is that, Himatbhai the accused No.2 had asked for a further safety and safeguard by saying that, if he comes out with the correct information nothing should happen to him. Rasikbhai says that, upon such an assurance, Himatbhai had made the extra judicial confession before them by saying that, the accused persons had decided to keep the deceased in their custody and to ask for a heavy ransom from his father. Rasikbhai further says that the accused No.2 had confessed before them, further that, they were going towards the field but at that time accused No.1 Nagjibhai had taken a dharia and later on Nagjibhai had given dharia blows to the deceased Nareshbhai. The say of Rasikbhai further is that, Himatbhai the accused No.2 had further told them that later on they had gone in the Satsang of the Swamiji but later on Nareshbhai was buried. During the cross examination, the witness has denied the suggestion that he had not stated before the police that while they were on the way Nagji had taken a dharia. He has also denied the suggestion that in his statement before the police he had not stated that village people had gone to the spot of the occurrence in company of the two accused persons. But when this evidence is read along with police evidence, it appears very clearly that Rasikbhai is not justified in saying so. There are the above said two contradictions in his evidence. P.W - 6, Dineshbhai, Exhibit - 35 has stated that they had called Himatbhai, the accused No.2 at the factory of previous witness Rasikbhai and on inquiry, at the first instance, the accused No.2 was not prepared to admit anything, but later on he was taken in confidence and he was assured that nothing would happen to him. It is further the say of Dineshbhai that Himatbhai had asked for a specific assurance that, nothing would happen to them and had later on given the extra judicial confession by saying that, accused no.1 Nagjibhai had murdered the deceased with dharia and later on the dead body came to be buried by both the accused. Therefore, when the evidence of witness Dineshbhai is scrutinised, it is eloquently clear that the accused No.2 Himatbhai was called at the factory of witness Rasikbhai and at the initial juncture he had not agreed to his complicity in the crime. Later on he was taken in confidence by Rasikbhai and Dineshbhai and he was further assured that, nothing is going to happen to him. In his turn accused no.2 had asked for a further assurance that nothing should happen to him and only thereafter the confession was made. Assailing the above said extra judicial confession, learned counsels for the appellants accused have urged that, because Rasikbhai happens to be the master of the accused no.2 Himatbhai, who was working in his factory and because the inducement was given, the statement made by the accused appears to be clearly hit by Section 24 of the Evidence Act. Learned counsels in this respect have placed reliance upon the Supreme Court decision in Satbir Singh and another etc. etc., Appellants v. State of Punjab, Respondent, Air 1977, S.C. page-1294. This decision of the Supreme Court makes it clear that in deciding whether a particular confession attracts the frown of Section 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind. The Supreme Court pronouncement brings in limelight the facts of the case. In that case Mr. Kapur had said to the accused on July 17, 1970, that " now that the case has been registered they should state the truth. " The Supreme Court says that, it would be difficult to hold that by this statement Mr. Kapur would not generate in the minds of the accused, some hope and assurance that if they told the "truth" they would receive his support. In the case on hand, as pointed out by us earlier, Rasikbhai was a person in authority. The accused no.2 Himatbhai was called to his factory. The said accused was not prepared to make any confession. He was induced to make a confession by assuring that, nothing is going to happen to him. The accused no.2 having not satisfied with this assurance had asked for a clear-cut assurance that nothing should, in fact, happen to him if he gives the information. Thus, it appears that the confession of the accused no.2 Himatbhai came before the