IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No 4 of 2003 with CRIMINAL APPEAL No 1625 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus BABUBHAI UDESING PARMAR -------------------------------------------------------------- Appearance: 1. Criminal Confirmation Case No. 4 of 2003 Mr R C Kodekar, A.PUBLIC PROSECUTOR for the applicant MR MC BAROT for Respondent No. 1 NOTICE SERVED for Respondent No. 1 2. Criminal Appeal No. 1625 of 2003 MR MC BAROT for appellant Mr R C Kodekar, A.PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 02/03/2005 C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE KSHITIJ R.VYAS) This confirmation case arises out of the judgment and order of conviction and sentence dated 18.12.2003 passed in Sessions Case No.298/2000 by the learned Joint District Judge, 4th Fast Track Court, Anand. The learned Judge has convicted Babubhai Udesing Parmar, the respondent of Criminal Confirmation Case and appellant of criminal appeal (hereinafter referred to as 'the accused') for offences under section 363, 366, 376 and 302 IPC and has awarded different sentences for the offence punishable under section 366 to suffer five years R.I. and to pay fine of Rupees one thousand, in default to undergo S.I. for 10 days, and for the offence punishable under section 376 (2)(6), R.I. for life and to pay fine of Rupees Five thousand, in default to undergo S.I. for two months, for offence under section 302 IPC, to be hanged till death subject to confirmation by the High Court. The said accused has also filed Criminal Appeal No.1625/2003 challenging the said judgment and order of conviction and sentence passed against him. 2. The prosecution case in brief can be stated as under: The first informant-Shankar Bhursinh had filed the FIR Exh.22 before PSI, Vidyanagar on 1.7.1998 wherein it was inter alia stated that for the purpose of earning livelihood, he had come with his family to Karamsad town and was doing labour work and was staying opposite Tirupati Petrol Pump. The incident in question happened in the month of July, 1998. The informant, after having his supper was sleeping under a shade. The informant woke up at about 2 a.m. for urinating and at that time his sister Savitaben was sleeping along with other family members. However, when he again woke up at about 4 a.m., he did not find her there. It was raining on that night. The informant woke up all his relatives and all made attempts to search for Savita. Ultimately, on the next day morning deadbody of Savita was found lying on her stomach in the surrounding field belonging to Malabhai and Kanbhai. Her neck was tied with the frock worn by her. Thinking that his sister was alive, the informant went near her and removed the knot and found that she was dead. She was in tongue bitten condition, blood was oozing out from her private part. The informant also found that the knicker worn by her was missing. The informant, thereafter informed his employer about the incident and thereafter filed complaint before the police. 3. PSI of Karamsad police station, recorded the complaint and after registering the offence, started usual investigation. He made inquest panchnama of the deceased and had also made panchnama of the scene of offence, the clothes and other articles collected from the scene of offence. The dead body of the deceased was sent for post mortem to Shree Krishna Hospital and Medical Research Centre, Karamsad. It appears that PSI one Mr R G Patel of Vidyanagar police station arrested the present accused in connection with CR No.122/97 and also recorded statement of accused on 12.8.2002 wherein he informed about the present incident and gave all details as to how the accused, after committing rape on Savita, committed her murder. Thereafter, the accused also showed the place of incident to PSI Mr Patel. Accordingly Mr Patel prepared panchnama of the scene of offence and recorded statement of the concerned witnesses. He sent the frock worn by the deceased to FORENSIC SCIENCE LABORATORY. It appears that the accused wanted to make confessional statement. Therefore, PSI Mr Patel prepared report at Exh.13. After collecting sufficient materials against the accused, charge sheet was filed before the Learned Judicial Magistrate First Class at Anand, who in turn, committed the case to the Court of Sessions as the offence for which the accused was tried, was being exclusively triable by the Sessions Court. 4. Charge - Exh.4 for the offence punishable under sections 363, 366, 376 and 302 was framed against the accused. The accused pleaded not guilty and claimed to be tried. In the further statement recorded under section 313 of the Criminal Procedure Code, the accused while denying the evidence led against him, has come out with a case that the police after pressurising him, obtained his signature on the confessional statement in the lobby of the Court. According to him, the learned Magistrate had recorded confessional statement in his absence and a false case had been filed against him. 5. Learned trial Judge, after appreciating oral as well as documentary evidence including the confession and the further statement of the accused, recorded his finding that the prosecution had established the charges levelled against the accused beyond reasonable doubt. He, therefore, convicted the accused and passed the sentence as stated above. Hence the present appeal. 6. We have heard Mr M C Barot, learned Advocate appearing for the appellant and Mr R C Kodekar, learned APP appearing for the State. We have also gone through the entire evidence and have minutely examined it with a view to reappreciate it. At the outset, it may be stated that the defence has not challenged the homicidal death of deceased Savita. Dr. Mayur Trivedi, PW 8 at Exh.24, serving as Additional Medical Officer in Shree Krishna Hospital, Karamsad at the relevant time, performed the post mortem of the deceased on 1.7.1998 with Dr.Sunil Bhatt. As per the post mortem examination report, the deceased was strangulated by tying frock around her neck and she died because of strangulation. Prior to it, she was raped also. He has given details about external appearance of the deceased by stating that the deceased had worn a violet coloured frock, five bangles of white metal, was fair-built and nourished, her condition and skin were cold, nails III face was Livid & Eyes Subjunctival, Haemorrhage on either side. State of Natural orifices (Nostrils, mouth, ears, Vagina, Anus & Urethra) Tongue protrude. Vagina torn, tongue bitten, tip protruding etc. He has also noticed the following description of injuries with their duration: 1. Contusion on neck 29.7 x 4.6 cm. Maximum width and 2.1 cms minimum width. 2. Abrasion on posterior aspect of upper third of Rt. forearm, 3.3 x 1.2 cm. 3. Abrasion below Rt. axilla 6.4 x 2.3 cms. 4. Contusion on Rt.hypochrondrisin 8.3 x 3.7 cms. 5.6.7. Three contusion on Rt.Scapular region 3.7 x 1.5 : 3.1 x 1.7 and 2/6 x 1.2 all measurements in cms. 8. Abrasion on Rt.lumber region 12.2 x 5.1 cms. 9. Posterior part of perineum swollen, blood stained and posterior vaginal will torn 3.1 x 0.2 x 0.4 cms. He has also given description of internal appearance on dissection of the deceased. Dr. Trivedi found congested brain and also found that the lungs of the deceased were congested C/S showing bubbling. He also found the mouth, pharynx & Oesophagus blood stained and her spleen congested. According to Dr. Trivedi, all the injuries were antemortem, injury no.1 being strangulation was possible by cloth, while injury no.9 is possible by rape. Injuries no.2 to 8 were also possible on coming in contact with hard substance. Dr.Trivedi opined that the cause of death was Asphyxia due to strangulation. He has also opined that the time of death was 24 hrs. of 30.6.1998. 7. Dr Trivedi was cross-examined by defence. However, nothing substantial has come out. Thus, in view of the medical evidence, it is clear that the deceased died homicidal death due to strangulation. 8. Shankarbhai Bhursingh, PW 6, brother of the deceased has given evidence at Exh.21. He has stated that for the purpose of earning livelihood, he and his family were doing labour work and were residing near Tirupati Petrol Pump, that in the month of July, after the days work, and after having their meals, they slept under the shade, he did not find his sister Savita when he woke up at 4 a.m. to answer the call of nature. He and his family, thereafter made all attempts to search Savitaben on that rainy night. Ultimately, on the next day the dead body of Savitaben was found near the fence of the field of Malabhai and Kanbhai, lying on her stomach. Her frock was tied around her neck and she was in naked condition. He has also noticed that the knicker put on by her was missing. He also found that blood was coming out from her private part. He felt that rape was committed by someone and accordingly lodged the FIR. Revliben, wife of the informant, PW 7 at Exh.23, has also given similar version in her evidence. 9. Mr M C Barot, learned Advocate appearing for the accused has not seriously challenged the evidence of PW 6 as well as PW 7. From their evidence the prosecution has established that the girl of tender age was kidnapped and done to death after being subjected to rape. Medical evidence on record also supports the ocular version of PWs 6 and 7. 10. The prosecution, for the purpose of establishing the involvement of the accused in the commission of the offence, has heavily relied on the confessional statement given by the accused which was recorded by the learned Magistrate under section 164 of the Criminal Procedure Code. Mr Barot has contended that no reliance can be placed on the confession alleged to have been made by the accused. According to him, the learned Magistrate has not followed the procedure which is required to be followed for the purpose of recording statement under section 164 of the Criminal Procedure Code, 1973 (for short, 'the Code') and has followed procedure which was not required to be followed. He submitted that the statement was recorded by administering oath, whereby the learned Magistrate has pinned down the accused to make the statement in a particular manner. It was, therefore, submitted that the confession was not by free will. Mr Barot also submitted that in absence of any corroboration to substantiate the alleged confession of the accused, no order of conviction can be passed solely on the basis of so-called confession of the accused. 11. Mr Barot has also submitted that there is nothing on record to show that the accused had come from the judicial custody before being brought before the Magistrate. Submission of the learned Advocate is that as the accused was brought by police, there was possibility of the accused being pressurised to make the confession and such dictum cannot be ruled out. It was therefore, submitted that the confession of the accused recorded by the learned Magistrate, was not free from doubt. To substantiate his submission, the learned Advocate for the accused relied upon the following decisions: 1. AIR 1978 SC 1544 - Devendra Prasad Tiwari v. State of U.P. 2. AIR 2004 SC 4197 - Parmananda Pegu v. State of Assam. 3. 1987 (3) Crimes 169 - Akanman Bora v. State of Assam 4. 1980 Cri.L.J. 171 - Philips v. State of Karnataka. 12. Mr R C Kodekar, learned APP, on the other hand, by inviting our attention to evidence of PW 2-Mr A R Patel, the learned Magistrate, submitted that the learned Magistrate has scrupulously followed the provisions of section 281 of the Code, while recording the confession under section 164 of the Code and in any case, in absence of any prejudice having been caused to the accused, it is submitted that the learned trial Judge has rightly relied on the confession of the accused recorded on oath. 12.1. Section 164 of the Code deals with recording of confessional statement. On a plain reading of section 164 of the of the Code, it is clear that before acting on a confession made before a Judicial Magistrate, the court must be satisfied first that the procedural requirement laid down under sub-section 2 to 4 thereof are complied with. These are solid safeguards to ensure that confessions are made voluntarily by the accused after being apprised of the implications of such confessions. 13. Section 281 of the Code deals with record of examination of the accused requiring the Magistrate to follow the procedure while examining the accused before him. Para 34 of the Criminal Manual is also relevant for this purpose which reads as under: "Following instructions are issued for the guidance of the Magistrate recording confessional statement under section 164 of the Code. They are not intended to be given by the law to the Magistrate. The only object with which they are issued is to indicate in general the manner in which the discretion may be exercised." 14. The above provisions give sufficient guidelines to the Magistrate to record confession and statements of the accused. While exercising the discretion, the learned Magistrate has to scrupulously follow the provisions of section 164 as well as the procedure under section 281 of the Code. 15. Mr A R Patel, PW 2 Exh.12, in his evidence has stated that at the relevant point of time, he was serving as Civil Judge (JD) and Judicial Magistrate First Class, Anand between 1.8.2000 and 10.6.2002. He was holding charge of another Civil Judge, Shri Lathia who was on leave on 24.8.2000. Where PSI Mr R G Patel produced the accused before him in connection with the offence committed under provisions of section 302, this witness sent the accused to the judicial custody. On the same day, PSI, Mr Patel gave application stating that the accused wanted to confess about 7 to 8 offences committed by him and also his involvement in the offence registered as CR 117/98. It may be stated at this stage that with respect to the present case, the offence was registered as CR No.117/98. The learned Magistrate, on the same day, passed an order on the application exh.13 granting permission to PSI, Vidyanagar police station to produce the accused for the purpose of recording confessional statement under section 164 of the Code. On the next day, i.e. on 25.8.2000, the date was fixed for the purpose of recording the confession and the accused was produced before the learned Magistrate. It was deposed by the witness that as the concerned Magistrate Mr Lathia had joined his duties, the accused was produced before him. Mr Lathia while granting time and fixed the date of 29.8.2000 for the purpose of recording confession, ensured that police party was kept out. He also called the accused in the chamber and asked him whether he was keen to give voluntary confession. The accused was also explained that confession would be used in evidence against him. Mr Lathia also granted time to consider his decision and fixed the date of 29.8.2000. On 29.8.2000 again Mr Lathia had gone on leave. The accused was therefore, produced before Mr A R Patel. PSI MR Patel was asked to produce the accused at 13.45 hours. The accused was informed by this witness that he was not bound to give confessional statement. He was also informed that he was not in police custody but in judicial custody. The witness has also deposed that the accused remained under fear of police and, therefore, he was further granted time to consider his decision and fixed the date of 31.8.2000. Exh.14 is the order passed by this witness. It is mentioned therein that the accused was produced under police escort at 13.45 hours and was asked to stand in the witness box. Police party was sent out of the court. The accused was asked whether he was prepared to give voluntary confession. The accused answered in affirmative by nodding his head down. The accused was asked since when he was in police custody, to which he replied that since 8.8.2000 by looking all around the court room. He was assured that he was not in the police custody but in the custody of the Magistrate. Even though the accused was granted time to reconsider his decision, as he remained under fear of police, the learned Magistrate opined that the accused deserved some more time so that he can came out of the fear and influence/impression of police custody and could freely confess. He accordingly gave next date of 31.8.2000. The accused was thereafter produced on 7.9.2000 before Mr Patel. At that time, besides the learned Magistrate, his board clerk Mr Bhatt, his peon Kantibhai Chauhan were there. This witness has specifically stated that the accused was produced before him by Police Constables Shankarbhai Gema and Ganesh Punjabhai. After taking the custody, the accused was kept in the custody of his peon Kantibhai. The police party was asked to leave the court. After being satisfied that the police party left the court, the learned Magistrate started recording the statement of the accused. Initially the accused was asked questions as per the requirement of Criminal Manual. The accused was informed that he was going to give the confession and the confession would be used against him in evidence, that the accused was not in police custody but in the custody of the Magistrate. The accused was asked about the relation with the police, and also whether the accused was making the confession due to any temptation or coercion. The answer given by the accused were recorded by the witness. On being satisfied with the answers given by the accused, as per the procedure prescribed under section 281 and para 34 of Form No.35 of the Criminal Manual, the confession was recorded by administering oath. According to this witness, the entire confession was taken verbatim and was subsequently read over to him. On every page his signature was obtained. The accused also put his signature below the confession. Thereafter, the Magistrate put his signature. Thereafter the accused was sent to sub-jail with police escorts. Exh.16 is the confession recorded by this witness wherein he has admitted that the incident had taken place two years back. He was not remembering the exact date. The accused was at his residence. At about 12 midnight, he had gone to Tirupati Petrol Pump, Karamsad. Opposite the said petrol pump there was a thrashing ground. He did not know who was the owner of the thrashing ground. He saw a girl lying there. He did not know her age. He lifted the girl. She started shouting. The accused shut her mouth with hands. He thereafter took her to a field through a narrow lane. In the field there was a babul tree on which there was a bird's nest. After taking the girl there, he removed her clothes and committed rape after gagging her mouth. After committing rape, he strangulated her neck with her frock, as a result of it, the girl died. He strangulated her at the corner of the fence and after leaving her there he left the place. 16. This witness has also introduced himself by giving his designation. He also identified the accused sitting in the court as the person who was produced before him and whose confession was recorded by him. 16.1. In the cross-examination, this witness has stated that he has made note of the procedure carried out by him while recording the confession in Exhs. 13, 14 and 16.He has not made note of the procedure not carried out by him. He has stated that he has recorded confession as per the provisions of sections 164 and 281 of the Code and as per the requirement of the Criminal Manual. He has further stated that when the accused was produced before him on 24.8.2000 for one offence, report was submitted to him that the accused wanted to confess with respect to the other offences too. He has admitted that along with report Exh.13, he has not given the statement of the accused as well as other record pertaining to his admission. It is stated by him that after going through Exh.13, permission to record statement of the accused was given. He has admitted that he started recording the confessional statement at 11.15 am on 7.9.2000 and completed it at 11.30 a.m. on the same day. He has also recorded confession of the accused with respect to CR No.221/98 which was completed at 11.45 am. He has also stated that at the time of confession, he has not offered legal aid to the accused. He has admitted that he has not mentioned in Exh.16 about the fact that out of fear the accused has given confessional statement. He offered protection to the accused against the misbehaviour and torturing by the police. However, he has made a note that the accused was sent to judicial custody. He has also suggested to the accused that on his failure to give confession, he would not be sent to the police custody. He has also admitted that while recording confession Exh.16 he has not mentioned the time of production of the accused nor mentioned time of the question and answer session. After recording the question answers, he has recorded name and address of the accused and thereafter administered oath and recorded the confession. The witness who stated that he did not examine the physical condition of the accused, but he has explained that as the accused was produced from judicial custody and he had not made any complaint against the police, physical condition of the accused was not examined. He has also stated that he did not carry out any medical check up of the accused. The witness has admitted that the accused was produced with police escort and was also sent under police escort. This witness has specifically denied the suggestion that confession exh.16 was recorded on the basis of previous confession. 16.2. After closely examining the evidence of this witness we are of the opinion that he has scrupulously followed the legal procedure while recording the confession. Instead of becoming over-enthusiastic in recording the statement, on 24.8.2000 itself when he was holding the charge of the concerned Magistrate, he postponed it till the next day i.e. on 25.8.2000. When the accused was produced on 25.8.2000 before the concerned Magistrate Mr Lathia, he had also adjourned the case to 29.8.2000 to enable the accused to think about the consequence of confession. When the accused was produced on 29.8.2000 before this witness, as Mr Lathia was on leave, he had specifically told the accused that he was not bound to make statement and that he was not in police custody but in judicial custody. Not only that but this witness felt that the accused was under the fear of police and, therefore, he granted some more time to think and kept the matter on 31.8.2000 vide the order passed by the learned Chief Judicial Magistrate, Nadiad at Exh.15, this witness was specifically asked to record confessional statement. This witness fixed 7.9.2000 as the next date for recording confession. The aforesaid facts did reveal that the accused was granted sufficient time to think before making the confessional