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Babubhai Udesinh Parmar vs State Of Gujarat on 24 November, 2006 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (crl.) 1635 of 2005

PETITIONER: Babubhai Udesinh Parmar

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T 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.

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.

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.

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.

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 don't 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 sleeping. I have lifted her. I don't know the age of the girl, as soon as she wanted to shout I have closed her mouth, and behind that field one cannel is there and I have taken the girl in that cannel, there was a field near the cannel, and in that field one tree namely baval was there and one floor was constructed thereon. I have taken the girl to that field, I have removed the cloth of the girl in the field, the mouth was shunted and have raped her, and thereafter I have given the noose on the neck with her frock as a result of which the girl was died. And I have taken the girl to the corner of the field and left the field after keeping the girl in the corner of the field. I have not told anybody about the incident, this is my confession regarding the offence."

It preceded by routine questions. It was accompanied by a certificate in usual form.

The learned Magistrate examined himself as PW-2. In his deposition he reproduced the statements of the appellant. In his cross-examination, he accepted that the confession started at about 11.15 a.m. and was completed at about 11.30 a.m. He did not remember that on the same day he recorded another confession of the appellant in relation to Session Case No. 298 of 2000. He, however, accepted that he had done so when it was brought to his notice. Recording of that confession was completed at 11.45 a.m. Till then no legal aid was provided to him.

He did not examine the body of the accused. He asked only the routine question as to whether he was ill-treated by the police. He accepted that the accused was produced before him under police protection and was also taken back under the police protection. He stated:

"�two things is to be noted in the confession statement regarding voluntarily and reality. I cannot say that the accused has shown the reality or not�"

Two inconsistencies appeared in the prosecution case vis-`-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 O'Clock 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. It may or may not be of much significance. But, it may assume significance when we examine that a purported deposition of accused was taken on 10.03.2003 wherein also his evidence on oath was recorded in the following terms:

"I hereby state on oath that:-

My Name	:	Babubhai My father's name	:	Udesing Parmar My age about	:	27 years My occupation :	Labour Work Village of Residence:	Native Umrav Tadia Pura, at present Karamsad Question: Have you received copy of documents of police investigation?

Answer:	Yes Question:	Is the charge sheet Exh. 4 read over to you, Do you admit the offence? Or you want to proceed further the judicial proceedings? Answer:	I do not admit the offence.

Question:	Have you engaged private advocate for your self defence or you want to engage advocate at the cost of Government?

Answer:	I have engaged free advocate."

Ms. Hemantika Wahi, learned counsel appearing on behalf of the State, would submit that the provisions of Section 164 of the Code of Criminal Procedure contains a salutary principle and only in the event the confession is found to have been voluntarily rendered, the same can be the foundation for recording a judgment of conviction.

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. [See Bharat v. State of U.P., (1971) 3 SCC 950 and Subramania Goundan v. The State of Madras, (1958) SCR 429] In State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [(2005) 11 SCC 600], this Court observed:

"Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law". (vide Taylor's Treatise on the Law of Evidence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession - be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer.

Section 164 of Cr.P.C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police."

However, it was categorically stated that retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.

Section 164 provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with. But, it does not envisage compliance of the statutory provisions in a routine or mechanical manner.

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.

suicide is not a solution of our problems
suicide is not a solution of our problems i am manokul chandra. in present time i am a student of law in banaras hindu university. i'm not a writer but i want to write a book. for the purpose of writing this book.i want to give/share a message in all peoples .who they think that. no one has solution of this problem and they commit suicide. i want to tell that people suicide is not a solution of your problems .so' don't commit suicide .i'm just saying that change your mind,improve your brain and exercise your brain. because you can do it and i'm know that nothing is impossible in this world .and every person will try your best but our nearest environment is different in our thought.which day i shall decide that i can change himself that day will be fantastic and your life is change and travel in other direction.and that day you told me .its miracle.

i've a childhood friend. his father is a doctor .on that reason sometimes i was visit in his hospital. i always see that some person were crying and beating our head. i don't know why .one day i went to hospital .two person was crying loudly .i feared and back to my home. next day i tell my friend yesterday i went to hospital for the purpose of meet with you but you are not present than i returned home.i asked my friend why people are crying in your hospital. my friend answered that he is patent of my father. my father is a surgen .so' he attend more type of cases like[rape,suicide and others].again i asked the question why people commit suicide .he answered that he is the patent of mental disease. and he never understand in that situation or handle that situation.they think that suicide is the best solution in their problems so'they commit suicide. that day i know why people commit the suicide. i'm thankful to my friend that he is consider me.

WHEN I AM REACHED IN 2ND SEMESTER THAN I FOUND THAT MY ENGLISH IS VERY WEAK.