PREETAM A v.

STATE OF MADHYA PRADESH ···.

MARCH 26, 1996

[M.K. MUKHERJEE ANO G .. B. PATANAIK, .I.I.]· B

Indian Penal Code, 1860: '.' Ss.302 and 404-Trial of two accused for offei1ces-Acquittal by trial court-High Cowt concuning with the trial court in disbelieving the eye C witnesses but convicting one. of the accused relying upon the confession a1id evidence relating to recove1y--Held, confession having been recorded by the 'Magistrate in utter disregard of provision of s. 164(2) Cr. P.C. High Court w.as not justified in relying upon it..J..consequen"tly the recoveries made pwiuant lo the statement of the accused cannot be made ihe sole basis for conviction.

D Oiminal Procedure Code, 1973 : . ' . .

Ss.164(2), .(4) and 379--Confession-Recording of by Magistrate-,1?.e- . quirements lo be colnplied with-;-ileld, omission by Magistrate to ask ques- .

lions to asce1tain whether <iccused was making confession voluntarily. resulted E in iion-conipliance of the manato1y require1nent.

CRIMINAL APPELLATE JURISDICTION : Criminal appeal No. 110 of 1986:' ·. · .

From the J udgmcnt nd Order dated 3.8.84 of the Madhya Pradesh F High Court in Crl. A. No 97 of 1976. . .

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S.S. Khanduja, Y.P. Dhingra and B.K. Satija; for the Appellant.

' K.N. Shukla, Prashant Kumar, S.K. Sinha and U.N. Singh for the Respondent. ,, ,

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. _. • ""i . '~ '. . . : ! . . • . . ./ , The following Order of the Court was delivered : . . . ' .. ' - '' , ..

Preetam, the. appellant herein and his brother Ishwa~·\.al were'' placed on trial "before the Sessioris Jlldge, Morena, for' commit'ting the murder of one Chhita on .Tune 1s, 1973 and removing ornaments fron\' his H 939

SUPREME COURT REPORTS

[1996] 3 S.C.R.

A person. The trial ended in an acquittal and aggrieved thereby the respondent-State preferred an appeal. The High Court dismissed the appeal so far as it related to Jshwar Lal but set aside the acquittal of the appellant and convicted and sentenced him under Sections 302 and 404 of the Indian Penal Code. The above order of reversal is under challenge in this appe<J.

B To prove its case the prosecution relied upon three eye witnesses, the doctor who held the autopsy, a judicial confession of the appellant and some recoveries made pursuant to his statement. While accepting the evidence of the prosecution so far as it sought to prove that Chhita met with a homicidal death, the trial Court rejected the entire evidence ad- C duced by the prosecution to prove that the appellant was the author of the

crimes. The High Court concurred with the finding of the trial Court that the three eye witnesses could not be relied upon but found the confession voluntary and true and as, according to it, the evidence relating to recovery corroborated the confession reversed the order of acquittal relying upon D the same.

Since the reasons given by the learned courts below for disbelieving the eye-witnesses are cogent and convincing we must leave their evidence out of our consideration'. We, therefore, proceed to consider whether the High Court was justified in making the confession the basis for conviction E of the appellant.

It appears from the record that the appellant was arrested on .June 17, 1973 and on his production before the Magistrate on the following day was directed to be sent to police custody, as prayed for by the investigating F officer. He remained in such custody till June 22, 1973 when he was sent to judicial custody under orders of the Magistrate. Thereafter he was produced before the Magistrate on June 25, 1973 for recording his confession. On his production, the Magistrate gave him two hours' time to reflect and then recorded the confession. From the confessional statement (exhibit P.11) we find that the Magistrate (p.w. 8) first disclosed his identity am!

G told him that he was not bound to make any confession and if he did so, it might be used as evidence against him. After administering the above caution the Magistrate recorded the confession and then made the memorandum required .under Sub-section (4) of Section 164 Cr. P.C. Jn our considered view, the.confession so recorded is in utter disregard of the H statutory provisions of Sub-section (2) of Section 164 Cr. P.C. Under the

PREETAM1•. STATE 941

above subsection the Magistrate is first required to explain to the accused A that he was not bound to make a confession and that if he did so it might he used against him. Though this requirement has lieen complied with in the instant case, the other requiren1ent \Vhich obligates the Magistrate to

put questions to the accused to satisfy hi111self that the confession was voluntary so as to enable him to give the requisite.certificate under Sub- B Section (4). has not been fulfilled for, the learned Magistrale did not ask any question, whatsoever to ascertain whether the appellant was making the confession voluntarily. In view of such llagrant omission to comply with the mandatory requirement of Section 164(2) Cr. P.C. we must hold that the High Court was not at all justified in entertaining the confession as a piece of evidence, much less, a reliable. one. Once the confession is left out C of consideration - as it has got to be - the only other piece of evidence to connect the appellant with the alleged offences are the recoveries allegedly made pursuant to his statement. Even if we proceed on the assumption that the evidence led by the prosecution in this behalf is reliable, still, cosidering its natre, we are unable to hold that it can made the sole basis D conviction even for the offence under Section 404 I.P.C.

On the conclusions above, we allow ihis appeal, set aside (h.e impugned order of the High Court and acquit the appellant of the charges levelled against him. The appellant who is on bail is discharged from his bail bonds.

R.P .. • Appeal allowed .

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