Krit Bhuian v. State Of Bihar — 1999 DIGILAW 905 (PAT)

Judgment R.A.Sharma, J. 1. The sole appellant in this appeal, along with three other persons, was charged and prosecuted for offences under Sec. 302/ 201 of the Indian Penal Code in Sessions Trial No. 364 of 1983. The trial Court acquitted all the persons except the appellant, who has been convicted and sentenced to life imprisonment. Being aggrieved the appellant has filed this appeal. 2. The prosecution case, as set out in the fardbeyan (Ext. 2) of the informant Surajnath Singh, on the basis of which a formal First Information Report was drawn up, is that on 30-7-1980 at about 6 a.m. the informant went to the house of one Boudh Bhuian, where his two sons, namely, Bhola Singh (deceased) and Bijay Singh. were sleeping and asked them to go and see the work of the house, whereupon Bijay Singh went to his house leaving Bhola Singh gossiping with the appellant and the informant left for his fields, from where he returned home at about 8 a.m. when he enquired about Bhola Singh, who had not returned home till then. Thereafter the informant along with other members of the family started search for Bhola Singh and on the next day, i.e., 31-7 -1980 he informed the police at the police station about him. On 2-8-1980 at about 11 a.m., one Jharu Dhobi told the informant that some pieces of a dead-body are lying in the Jungle, whereupon the informant along with his other members of the family went to the said Jungle and found some parts of the body of the deceased along with his clothes lying over there. He also found the gamchha of the appellant lying in a bush. On 2-8- 1988 the fardbeyan (Ext. 2) of the informant was recorded on the basis of which formal First Information Report (Ext. 1) was drawn up. The Investigating Officer went to the place of occurrence, made investigation and submitted the charge-sheet against the four persons including the appellant, for the offence under Sec. 302/201 of the Indian Penal Code. The learned Chief Judicial Magistrate took cognizance of the offence against the charged persons and committed the case to the. Court of Sessions for trial. 3. The prosecution has produced ten witnesses in support of its case, but none of them is the eyewitness of the occurrence. The learned Chief Judicial Magistrate took cognizance of the offence against the charged persons and committed the case to the. Court of Sessions for trial. 3. The prosecution has produced ten witnesses in support of its case, but none of them is the eyewitness of the occurrence. PW 1 is a formal witness, who has proved the First Information Report (Ext. 1) and the fardbeyan (Ext. 2). PW2 is the informant. PW 3 is the person, who told the informant about the parts of a dead-body lying in the Jungle. PW 4 and PW 5 have been tendered. PW 6 Vijay Kumar Singh is the brother of the deceased Bhola Singh, who has stated in his testimony that when he left the house of Boudh Bhuian, the appellant and the deceased Bhola Singh were sitting and gossiping at the tube-well and thereafter they went towards the river. PW 7 has stated that he saw the appellant and the deceased going towards the river. PW 8 has said that one Fuleshwar Bhuian has informed that he has seen the deceased with 5-6 persons, but the said Fuleshwar Bhuian has not been examined. PW 9 is the Investigating Officer and PW 10 is the Judicial Magistrate, who has recorded the alleged confession of the appellant. 4. The trial Court has acquitted the three accused persons but has convicted the appellant and sentenced him to life imprisonment under Sec. 302/201 of the Indian Penal Code for the following three reasons: (i) The confession of the appellant recorded by the Judicial Magistrate under Sec. 164 of the Code of Criminal Procedure (hereinafter referred to as the Code); (ii) Production of head and some other parts of the body of the deceased Bhola Singh by the appellant before the Investigating Officer; and (iii) The deceased was last seen with the appellant by certain prosecution witnesses. 5. The alleged confessional statement of the appellant was recorded by the Judicial Magistrate on 5-8-1980 and has been marked as Ext. 6. 5. The alleged confessional statement of the appellant was recorded by the Judicial Magistrate on 5-8-1980 and has been marked as Ext. 6. In the said statement the appellant has stated that the deceased Bhola Singh was sleeping in the house of his uncle Boudh Bhuian and in the morning he along with the deceased went towards the river to attend the call of nature, from where they crossed the river to see their respective fields and when the deceased was on his field, Fuleshwar Bhuian came from behind and caught hold of him and then two other persons, namely, Bandhu and Ramdas snatched the pistol from the waist of the deceased, on which the deceased started crying and shouting. Thereupon Chaudhary Bhuian put gamchha in his mouth to stop him from crying and shouting. Thereafter, all those four persons took the deceased towards the jungle and the appellant also followed them for some distance but when they entered into the jungle, he came back when he was warned by those persons that he will be killed if he will tell about the incident to others. 6. The confession is an admission of guilt by a person charged of a crime. The Apex Court in Palvinder Kaur V/s. The State of Punjab, in this connection has laid down as under: "16. It was observed by their Lordships of the Privy Council in Pakala Narayanaswami V/s. Emperor, A.I.R. 1939 P.C. 47, that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession." 7. The statement of the appellant Ext. 6 is of exculpatory character. The appellant has not admitted the guilt of any offence. In fact if his statement is read as a whole it does not suggest commission of any offence by him under the Indian Penal Code. Such a statement cannot be said to be a confess Jon and as such is not admissible in evidence against the maker thereof. 8. That apart, even if it is presumed that the appellants statement (Ext. Such a statement cannot be said to be a confess Jon and as such is not admissible in evidence against the maker thereof. 8. That apart, even if it is presumed that the appellants statement (Ext. 6) amounts to confession, it was recorded by the Judicial Magistrate in contravention of the provisions under Sec. 164 (2) of the Code, which have provided that before recording any confession the Magistrate shall explain to the person making it that he is not bound to make a confession and if he does so it can be used as evidence against him and the Magistrate shall not record any such confession unless upon questioning the person making it, he reasonably believes that it is being made voluntarily. In the instant case the confessional statement (Ext. 6) does not disclose that the Magistrate, who recorded it, has explained to the appellant that he is not bound to make a confession and if he does-so, it can be used against him. The said statement also does not disclose that the Magistrate questioned the appellant in order to verify that he is making the statement voluntarily. In paragraph I of his testimony before the trial Court the Judicial Magistrate, who recorded the said statement of the appellant, has merely stated that while recording the confession he has followed all rules. In paragraph 3 of his testimony he has further stated that he has informed the appellant about his identity and have also warned him. But he has not stated that he questioned the appellant in order to find out whether he is making the confession voluntarily. 9. The Apex Court in Preetam V/s. State of M.P.2, the relevant extract of which is reproduced below, has laid down that the provisions of Sub-sec. (2) of Sec. 164 of the Code require the Magistrate to put question to the accused to satisfy himself that the confession is voluntary and if it is not done the confession becomes inadmissible in evidence: "14. In our considered view, the confession so recorded is in utter disregard of the statutory provisions of subsection (2) of Sec. 164, Cr. P.C. Under the above subsection the Magistrate is first required to explain to the accused that he was not bound to make a confession and that if he did so it might be used against him. In our considered view, the confession so recorded is in utter disregard of the statutory provisions of subsection (2) of Sec. 164, Cr. P.C. Under the above subsection the Magistrate is first required to explain to the accused that he was not bound to make a confession and that if he did so it might be used against him. Though this requirement has been complied with in the instant case, the other requirement which the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under Sub-sec. (4), has not been fulfilled for the learned Magistrate did not ask any question whatsoever to ascertain whether the appellant was making the confession voluntarily. In view of such flagrant omission to comply with the mandatory requirement of Sec. 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." In Tulsi Singh V/s. State of Punjab, the Apex Court has held that the confessional statement should indicate that the questions were put to person making it by the Magistrate to satisfy himself that the confession was being made voluntarily. In this connection the Apex Court observed as under: "5. Though the learned Magistrate testified that before recording the confession he satisfied himself that the accused (appellant) was making a voluntary statement and that after giving due caution he recorded it, the confession does not anywhere indicate as to whether before recording the same he gave him the requisite caution and put questions to satisfy himself that it was being made voluntarily. These are the basic pre-requisites for recording a confession under Sub-sec. (2) of Sec. 164, Cr. P.C. and mere endorsement in accordance with subsection (4) after recording it would not fulfil the requirements of the former sub-section." 10. For the reasons given above, the alleged confession (Ext. 6) of the appellant is not admissible in evidence and it was not open to the trial court to convict the appellant on its basis. 11. The second reason for recording conviction against the appellant is that he produced the head and other parts of the dead-body of the deceased Bhola Singh before the Investigating Officer. It may be mentioned that the seizure list, which is Ext. 4, does not show the recovery of the head. 11. The second reason for recording conviction against the appellant is that he produced the head and other parts of the dead-body of the deceased Bhola Singh before the Investigating Officer. It may be mentioned that the seizure list, which is Ext. 4, does not show the recovery of the head. It shows the recovery of one bond each of leg, arm/hand and the lower part of the jaw. These pieces of bones were sent by the police to the Rajendra Medical College and Hospital, Ranchi for their examination, but the report of the expert has not brought on the record of the case. Page 48 of the case diary written by the Assistant Sub-Inspector of Police, which is said to be the copy of the report of the expert, has been marked as Ext. 5 on the statement of the Assistant Sub-Inspector of Police. 12. If the prosecution wanted to reply on the report of the expert, who examined the pieces of bones, the same should have been filed on the record of the case and should have also been proved by the expert, who examined and submitted the report. But that has not been done. The pages of the case diary, which contain the writing of the Assistant Sub-Inspector of Police, cannot be admitted in evidence against the accused. There is also not even evidence on record showing that the pages of the case diary mentioned above contain the true copy of the experts report. There is thus no evidence on record to show that the bones, which were seized, were of the human being. Even the Investigating Officer has not been examined in this case so as to prove the production of the head and other parts of the body of the deceased by the appellant before him. 13. The third reason for convicting the appellant is that the deceased was last seen with the appellant. It is true that PWs 6 and 7 have testified to have been that the deceased Bhola Singh was seen going with the appellant, but that by itself is not sufficient to convict him. It can only create suspicion. But suspicion, howsoever strong it may be, will not justify recording of conviction. It is true that PWs 6 and 7 have testified to have been that the deceased Bhola Singh was seen going with the appellant, but that by itself is not sufficient to convict him. It can only create suspicion. But suspicion, howsoever strong it may be, will not justify recording of conviction. In the absence of any other evidence, either direct or circumstantial, showing the involvement of the appellant in the commission of the crime, he was not liable to be convicted on the basis of the deceased being seen last with him. 14. For the reasons given above, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 4-2-1989 passed by the 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 364 of 1983 is set aside and the appellant is acquitted of the charges levelled against him. He is also discharged from the liability of the bail bonds. A.K.Prasad, J. 15 I agree.