Failure to adhere to the prescribed procedure for recording confessional statements under Section 164 Cr.P.C. can lead to the quashing of judgments.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. This criminal revision application is directed against the judgment dated 16.10.2004 passed by the learned Sessions Judge, Simdega in Criminal Appeal No. 14 of 2004, partly allowing the appeal and upholding the judgment of conviction and order of sentence dated 31.08.2004, passed by the learned Assistant Sessions Judge-II in S.T. Case No. 09/2002, whereby the petitioners have been convicted and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.5,000/- for the offence punishable under Section 395 I.P.C. and in default of payment of fine he was further directed to undergo R.I. for further three months. The petitioners have been further convicted and sentenced to undergo R.I. for five years with a fine of Rs.5,000/- for the offence punishable under Section 412 I.P.C. and in case of default in payment of fine they were further directed to undergo R.I. for three months. However, learned appellate court modified the judgment of conviction and order of sentence to the extent that petitioners were acquitted from the charge of offence punishable under Section 412 I.P.C.

3. The prosecution case, as per fardbayan, in brief is that on 14.06.2001 at 10 p.m. a group of persons claiming themselves to be M.C.C. members entered the house of the informant and demanded money. As the informant showed his inability to pay they took away five to six blankets of Rs. 80/- each and next morning informant came to know that nine persons claiming themselves to be members of M.C.C. went to the house of other villagers also but the informant did not know whether they had demanded money from other villagers. On the basis of the fardbayan a case under Section 395 I.P.C. was registered vide Simdega P.S. Case No. 46 of 2001 dated 17.06.2001 against nine unknown accused persons. Test Identification Parade was held and statement u/s 164 Cr.P.C. were recorded and after investigation the charge-sheet was submitted against thirteen persons u/s 395 and 412 I.P.C. The trial was conducted against twelve persons including the petitioners.

4. At the outset, Mr. Gaurav Abhishek, learned Amicus for the petitioners submits that the prosecution has tried to prove the case against petitioner on the basis of T.I.P. recovery of looted articles and confessional statement under Section 164 Cr.P.C. However, with respect to T.I.P., though the learned court below has come to the finding in Paragraph 25 and 29 of the impugned judgment that the T.I.P. held in this case is not free from doubt and acquitted the other accused persons, but convicted the petitioners. With respect to recovery of looted articles the learned court below has come to the conclusion that none of the witnesses has supported any search and seizure from the house of the accused. Regarding conviction of the petitioners on the basis of their confessional statement, it is submitted that the procedure prescribed in Section 164 (4) was not followed, Sub-section (4) states that such confession shall be recorded in the manner provided in S. 281 Cr.P.C. and the Magistrate has to append a note of memorandum at the foot of the confession, in the present case the same has been recorded at the top of the page which will draw adverse inference to the voluntariness of the statement as to whether it was written before recording the confessional statement. Section 463 Cr.P.C. permits evidence of non-compliance of Section 164 and 281 Cr.P.C. to be taken to be examined if it has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement, however, in the present case there was substantial illegality while taking confession which is prohibited and cannot be termed as a curable irregularity under Section 463 Cr.P.C. On the basis of aforesaid, the learned counsel for the petitioners has prayed for quashing of the judgments of the learned trial court as well as the learned appel