IMPORTANT POINT
A judgment of conviction can be based on judicial confession if it is found to be truthful, deliberate and voluntary and if clearly proved.

Headnote:Indian Penal Code, 1860 - Sections 376 and 302 - Rape and murder of child girl - Conviction and sentence of death - Conviction recorded on basis of judicial confession recorded by Magistrate and was upheld in appeal by High Court - Appeal - Two inconsistencies in prosecution case vis-a-vis purported confession - Evidence of brother of deceased showed that offence was committed between 2 a.m. and 4 a.m. whereas as per confession offence was committed around 12 O’clock in night - Prosecution case proved that besides complainant other family members were also sleeping in the shed whereas confession showed that deceased alone was sleeping in shed when lifted and taken away by accused - Conviction could be based on confession if it was found to be truthful, deliberate and voluntary and proved clearly - Court must give sufficient time to accused to ponder over as to whether he would make confession - Appellant was produced from judicial custody but he had been in police custody for 16 days - Confession was recorded in 15 minutes time and thereafter immediately confession of another offence was recorded, both offences involved serious offences - Conviction could not be sustained.
       Held : Two inconsistencies appeared in the prosecution case vis-a-vis the said purported confession. The evidence of the brother of the deceased categorically shows that the offence was committed in between 2 a.m. and 4 a.m. The purported confession shows that the offence was committed around 12 OClock in the night. The prosecution case proved that not only the complainant but also other family members were sleeping in the same shed. The purport of the confessions goes to show that the deceased was sleeping alone in the shed. We do not appreciate as to why oath had to be administered to the accused while recording confession. Taking of a statement of an accused on oath is prohibited.(Paras 9 & 10)
       A judicial confession undoubtedly is admissible in evidence. It is a relevant fact. A judgment of conviction can also be based on a confession if it is found to be truthful, deliberate and voluntary and if clearly proved. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged on the basis of the entire prosecution case.(Para 12)
       The court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The appellant was produced from judicial custody but he had been in police custody for a period of 16 days. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance of spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance of the provisions of Section 164 of the Code of Criminal Procedure which would mean compliance of the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. He was produced at 11.15 a.m. The first confession was recorded in 15 minutes time which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free from threat, coercion or undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant.(Para 16)
       The judgment of the learned Trial Judge gives an impression that he had proceeded on the basis that the appellant is guilty of commission of crime in large number of crimes. The High Court although taken note of the propositions of law, while pointing out the corroborative pieces of evidence, repeated only the evidences brought on records which proved the commission of offence. The purported corroborative evidence brought on record by the prosecution and as noticed by the High Court did not indicate that the appellant was guilty of commission of the offence. The circumstances were not such which formed links in the chain and point out only to the guilt to the accused and accused alone. We, therefore, with respect, are constrained to record disagreement with the ultimate findings of the learned Sessions Judge as also the High Court.(Paras 22 & 23)

JUDGMENT

S.B. Sinha, J. - The appellant herein was a labourer. He is said to have committed a series of offences involving heinous crimes. He is involved also in a case of rape and murder of a minor girl Savita. She was sister of Shankar Bhursinh (complainant). He lodged a First Information Report on 1.07.1998 inter alia stating that he with a view to earn his livelihood came with his family to Karamsad town. He was staying in a shed opposite to Tirupati Petrol Pump. He was sleeping in that shed. He woke up at about 2 a.m. for answering the call of nature. At that time her sister was sleeping along with other family members. When he woke up again, he did not find Savita. It was raining on that night. Searches were made for her. On the next day morning, her dead body was found lying in the surrounding field belonging to Malabhai and Kanbhai. Her neck was tied with a frock which was worn by her. She was found to be dead. The blood was found to have been oozing out from her private part. The knicker worn by her was also missing. He informed the police. The appellant was arrested by the investigating officer Mr. R.G. Patel on 12.08.2002. He purported to have made a confession about committing rape and murdering Savita. He also allegedly showed the place of incidence to the investigating officer. He prepared panchnama of the scene of offence and recorded statement of the concerned witnesses. He then sent the frock worn by the deceased to Forensic Science Laboratory. The appellant purported to have made a confessional statement before PW-2 Ambalal.

2. Principally relying on or on the basis of said judicial confession made by the appellant, he was found guilty of commission of offence. The learned Sessions Judge took into consideration the fact that he has been found guilty of commission of similar offences as also other offences and, thus, imposed death penalty on him. The High Court affirmed the said judgment of conviction and sentence by its judgment dated 2.03.2005.

3. The High Court while recording that the confession was found not only to be true but having been voluntarily made, opined that the same could be relied upon. At the same time, the High Court proceeded on the basis that the accused was free to make retraction of his confession when his statement under Section 313 of the Code of Criminal Procedure was recorded. The High Court furthermore noticed that oath should not have been administered to the accused but opined that the same is not of much significance but proceeded on the basis that the decisions of the Apex Court have often said that the court cannot solely rely on the retracted confession and make it a foundation for convicting the accused. But, while purporting to keep the confessional statement of the appellant aside, it examined the purported circumstances used against him. We are afraid, nothing has been brought on record to show existence of any circumstance which would lead to the conclusion that the appellant alone is guilty of commission of the offence.

4. Rape and murder of Savita is not in dispute before us. It is also not disputed before us as that apart from the purported judicial confession there is no other material which can be said to be sufficient to establish the guilt of the appellant. The Chief Judicial Magistrate, Nadiad recorded the confession on the basis of an application made by the said Mr. R.G. Patil. An application was also filed to record the confession of the appellant in another case bearing No. I.C.R. No. 123 of 1997.

5. The confession was recorded on 7.09.2000. He was in judicial custody for a period of 16 days. His statement is as under:

"The incident is of two years old I do not remember the exact date. On that day I was at my house and at night say around 12.00 I went to the field which is at opp. Karamsad Petrol Pump. I dont know whose field is this. On being reached to the field I saw that there was one shed with a............, and under that shed one girl was sle

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2006 Supreme(SC) 1175

IMPORTANT POINTA judgment of conviction can be based on judicial confession if it is found to be truthful, deliberate and voluntary and if clearly proved.

Cases Referred (6)

IMPORTANT POINT
A judgment of conviction can be based on judicial confession if it is found to be truthful, deliberate and voluntary and if clearly proved.