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2014 DIGILAW 574 (UTT)

SUNDAR SINGH RAUTELA v. STATE OF UTTARAKHAND

2014-12-12

ALOK SINGH, SERVESH KUMAR GUPTA

body2014
JUDGMENT Hon’ble Alok Singh, J (oral) Present appeal is preferred assailing the judgment and order dated 06.09.2010 passed by Sessions Judge, Almora in Sessions Trial No. 24 of 2009 whereby accused appellant was held guilty for the offence punishable under Section 302 IPC and was sentenced to undergo life imprisonment and to pay fine of Rs. 5000/- and in default of making payment of fine, to undergo additional rigorous imprisonment for one year. 2. Brief facts of the present case, inter alia, are that Narendra Singh Rautela (PW1) reported the matter to police station Dwarahat, District Almora at about 11.00 p.m. on 24.03.2009 stating therein that on 24.03.2009 in the evening, informant Narendra Singh Rautela (PW1) along with his son Jeetu @ Jitendra Singh Rautela (deceased) was coming from village Dhon to their house; near Chaukhutiya Taxi Stand, Dwarahat, their former driver Sunder Singh Rautela @ Shankar Singh (accused – appellant, herein) was standing on the road; accused/appellant, herein, asked my son, as to why he (Jeetu @ Jitendra Singh Rautela) did not pay his one month salary; on this, my son - Jeetu @ Jitendra Singh Rautela (deceased) told the accused, let us sit and talk; Sunder Singh Rautela @ Shankar Singh (accused) was carrying Badiyat (sharp edged weapon) with him; he assaulted so many times on the neck of my son whereupon my son - Jeetu @ Jitendra Singh Rautela fell down; having seen the incident, I became unconscious; having received the information, PW2 Prem Singh Rautela, real brother of informant came on the spot; having gained consciousness, informant narrated entire incident to Prem Singh Rautela (PW2); meanwhile, few people came and took Jeetu @ Jitendra Singh Rautela to hospital; however, Jeetu @ Jitendra Singh Rautela was declared dead; on my dictation, PW2 Prem Singh Rautela prepared a report, therefore, having registered the FIR appropriate action may be taken. 3. Jeetu @ Jitendra Singh Rautela was taken to hospital where he was declared dead. Postmortem on the dead body of Jeetu @ Jitendra Singh Rautela was conducted on 25.03.2009 and cause of death was opined due to neck injuries received by a sharp edged weapon. 4. Accused appellant was arrested on 25.03.2009. Pant and jacket wore by the accused appellant at the time of incident, were taken into the custody and kept in a seal cover. On his pointing out Badiyat was recovered and kept in seal cover. 4. Accused appellant was arrested on 25.03.2009. Pant and jacket wore by the accused appellant at the time of incident, were taken into the custody and kept in a seal cover. On his pointing out Badiyat was recovered and kept in seal cover. He wanted to confess his guilt. Consequently, an application was moved before the Judicial Magistrate, Ranikhet to record the statement of accused/appellant under Section 164 Cr.P.C. Accused was produced before the Judicial Magistrate seeking remand on 26.03.2009. On 26.03.2009 itself, learned Magistrate, having explained to the accused/ appellant that he was free to make statement and statement, so made, could be read against him, recorded the confessional statement of accused appellant under Section 164 CrPC. Clothes of the accused appellant and weapon recovered were sent to FSL for chemical examination. As per FSL report dated 23.04.2009, human blood was found on the pant and jacket of the accused/appellant, however, on the weapon, disintegrated blood was found. Having investigated the matter, police submitted charge-sheet. 5. To prove the prosecution story, Narendra Singh Rautela, father of deceased PW1, Prem Singh Rautela PW2, Abdul Qayyum, Judicial Magistrate, who recorded the statement under Section 164 CrPC PW3, Dr. D.S. Nai PW4, Constable Deepak Singh PW5, Ram Singh Mehra PW6 and Sanjay Singh Garbyal PW7 were examined and thereafter, statement of accused appellant was recorded under Section 313 CrPC. 6. Having examined the entire material made available on the record and having heard learned counsel for the parties, learned Trial Court was pleased to hold the accused-appellant guilty for the offence punishable under Section 302 IPC and sentenced him to undergo life imprisonment and to pay fine of Rs. 5,000/- and in default, to undergo additional imprisonment for one year. Feeling aggrieved, accused-appellant has preferred the present appeal. 7. We have heard Mr. R.S. Sammal, learned counsel for the accused-appellant and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. G.S. Negi, Brief Holder for the State and have carefully perused the records. 8. Accused-appellant was said to be arrested by PW6 Ram Singh Mehra near Dak Bungalow, Bhirapani Tiraha on 25.03.2009. 7. We have heard Mr. R.S. Sammal, learned counsel for the accused-appellant and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. G.S. Negi, Brief Holder for the State and have carefully perused the records. 8. Accused-appellant was said to be arrested by PW6 Ram Singh Mehra near Dak Bungalow, Bhirapani Tiraha on 25.03.2009. He was produced, for the first time, before the Judicial Magistrate for remand on 26.03.2009; statement of the accused-appellant was recorded under Section 164 of Cr.P.C. on 26.03.2009, itself wherein accused-appellant stated as under: “My name is Sunder Singh Rautela; my father’s name is Nandan Singh; I am resident of village Nattiguli; I am M.A. passed; I drive taxi; on 24.03.2009, we consumed liquor; I was going to my house; Jitendra Singh Rautela (deceased) came from behind to kill me; I snatched Badiyat (sharp edged weapon) from Jitendra Singh Rautela (deceased) and killed Jitendra Singh Rautela with the same weapon; injuries were caused on his neck by the weapon; thereafter, I went to Police Station and surrendered along with Darati (badiyat, a sharp edged weapon); he (deceased) used to extend threat to me and attempted to kill me twice; deceased attempted to kill me in front of the public on the occasion of Holi; I do not want to state anything more.” 9. Let us now examine as to whether statement of the accused-appellant recorded under Section 164 of Cr.P.C. by the learned Judicial Magistrate, Ranikhet on 26.03.2009, itself, when the accused-appellant was produced by the police before the Magistrate for the first remand can be relied upon. 10. Hon’ble Apex Court in the case of Sarwan Singh Vs. State of Punjab reported in AIR 1957 SC 637 has held as under: “It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.” 11. Hon’ble Apex Court in the case of Rabindra Kumar Pal Vs. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.” 11. Hon’ble Apex Court in the case of Rabindra Kumar Pal Vs. Republic of India reported in 2011 (2) SCC 490 has held as under: “The following principles emerge with regard to Section 164 Cr.P.C.:- (i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.” 12. In the case in hand, no reasonable time was given to the accused-appellant to rethink or to decide, as to whether, he should make confessional statement. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.” 12. In the case in hand, no reasonable time was given to the accused-appellant to rethink or to decide, as to whether, he should make confessional statement. It seems that learned Magistrate had recorded the confessional statement of the accused-appellant under Section 164 of Cr.P.C. in haste on the same day when accused-appellant was produced before him for remand in the police custody. Learned Magistrate, before recording the confessional statement, must give reasonable time to the person making confessional statement to rethink as to whether he wants to confess or not and such person must be told that confessional statement, if made, can be read against him. 13. Since learned Magistrate had recorded the confessional statement of the accused while he was in police custody and no reasonable time was given to the accused-appellant to think as to whether he still wants to make confessional statement, therefore, confessional statement, so recorded, is not reliable. Therefore, we are not inclined to place any reliance on the confessional statement of the accused recorded under Section 164 of Cr.P.C. 14. PW1 Narendra Singh Rautela, father of the deceased, is an eyewitness of the incident. Therefore, we are not inclined to place any reliance on the confessional statement of the accused recorded under Section 164 of Cr.P.C. 14. PW1 Narendra Singh Rautela, father of the deceased, is an eyewitness of the incident. He has stated, in so many words that on 24.03.2009, at about 10.00 p.m., when he reached along with son Jeetu @ Jitendra Singh Rautela, near Chaukhutiya Taxi Stand, accused/appellant Sunder Singh Rautela @ Shankar Singh came and started abusing Jeetu @ Jitendra Singh Rautela whereupon Jeetu @ Jitendra Singh Rautela requested the accused that let us sit and talk, however, without responding to the request of Jeetu, accused/ appellant, who was carrying Badiyat (sharp edged weapon) in his hand started assaulting Jeetu @ Jitendra Singh Rautela and gave repeated blows of sharp edged weapon on the neck of Jeetu @ Jitendra Singh Rautela; having received injuries at the hands of accused/appellant, Jeetu @ Jitendra Singh Rautela fell down; having seen his son being assaulted by accused appellant, PW 1 father of the deceased became unconscious; meanwhile, real brother of PW1 namely Prem Singh Rautela (PW2), who was residing near the place of occurrence came on the spot and meanwhile, injured was taken to the hospital and having gained the consciousness PW1 Narendra Singh Rautela narrated the entire story to PW 2 whereupon PW 2 Prem Singh Rautela prepared a report on the dictation of PW1 and report was lodged with police station Dwarahat. 15. Mr. R.S. Sammal, Advocate for the accused/appellant, has vehemently argued that as per statement of PW1 father of the deceased, seeing the incident, he became unconscious and fell on the road and having gained consciousness, he narrated the entire story to his brother PW2 Prem Singh Rautela. Jeetu was rushed to the hospital from the spot. However, as per statement of Constable Deepak Singh PW 5, when they reached on the spot while on patrolling duty in the area, they found Jeetu @ Jitendra Singh Rautela lying on the road and did not notice PW1 on the spot, therefore, statement of PW1 should not be believed. 16. In our considered opinion, this is not such a big contradiction where we should disbelieve the statement made on oath by eyewitness PW1 Narendra Singh Rautela. 16. In our considered opinion, this is not such a big contradiction where we should disbelieve the statement made on oath by eyewitness PW1 Narendra Singh Rautela. Not only this, PW2 Prem Singh Rautela has also supported the statement of PW1 that having noticed the noise, he came rushing on the spot from his house where he was residing, which is nearby to the place of occurrence and found his brother lying on the road unconscious and his nephew was seriously injured and injured Jeetu @ Jitendra Singh Rautela was taken to the hospital by some persons. 17. We do not find any unnatural story. We are of the considered opinion that minor contradictions are natural. However, they should not be made basis to discard the statement of eyewitness. 18. As per the FSL report, human blood was found on the pant and jacket of the accused appellant, which was taken into the custody by the police, soon after the arrest of the accused/appellant and were sent for chemical examination. Accused/appellant did not offer any explanation as to how his clothes could get bloodstains. It is not the case of the accused/ appellant that he himself was having injuries or sustained injuries, therefore, blood found on the clothes was his. 19. In view of the discussion made hereinbefore, we do not find any good reason to take contrary to the view taken by learned Sessions Judge, therefore, appeal fails and is hereby dismissed. Accused appellant is on bail. Let he be taken into custody to serve out the sentence as awarded by the trail court. 20. Before parting with this judgment, we think it appropriate that copy of this judgment should be forwarded to all the judicial officers of this State to strictly follow the judgment/guidelines of the Hon’ble Apex Court while recording the confessional statement under Section 164 CrPC. We direct accordingly. 21. Let the copy of this judgment along with LCR be sent to the court below for information and compliance.