Rangtu Munda vs State of Assam

P. G. Agarwal, J.—Heard Mr. T C Chutia, learned amicus curiae for the appellant, and Mr. PC Gayan, learned Additional Public Prosecutor, Assam.

This criminal appeal arises out of the judgment and order dated 12.12.1997 passed by the learned Sessions Judges, Sibsagar, in Sessions Case No. 45(S-S)/1996 whereby convicting the accused/appellant Rangtu Munda u/s 302, Indian Penal Code, and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 4,000, in default to undergo imprisonment for two years.

The prosecution case, in brief, is that Smti Mary Munda, wife of the accused/appellant, Rangtu Munda was found missing since 23.10.1995 and on the next day her dead body was found in the house of one Gobra Tanti with injuries on her person. Thereafter, the son of the deceased lodged the First Information Report and the dead body was sent for post-mortem examination.

PW 7 is Doctor BK Das who held post-mortem examination over the dead body of the deceased and found the following injuries on the person of the deceased :

"External Appearances: Dead body of a stout Hindu Female, aged about 45 years. Rigor mortis present.

Wounds : (1) One lacerated wound on the left side of the forehead 2" x 1/2 x 1/2" in size. Subcutaneous tissues contained blood.

(2) One abrasion on the right side of the chest 2" x 1" in size. Subcutaneous tissues contains blood.

(3) One abrasion on the left side of the chest 1" x 1" in size.

(4) One lacerated wound on the lateral side of the left eye - 1" x 1/2 x 1/4" in size.

Cranium and spinal canal:

Fracture of the left parietal bone of the skull. Clotted blood is seen on the surface of the left parietal lobe of the brain."

In the opinion of the doctor, the death of the deceased was due to the injuries sustained and they were homicidal and ante-mortem and caused by a blunt object.

Mr. Chutia, learned counsel for the appellant has not disputed the death of the deceased as a result of the injuries. He, however, submitted that this is a case of no evidence. We find that there is no eye witness to the occurrence, i.e., none of the witnesses saw the deceased being assaulted. The entire prosecution''s case rests on the circumstantial evidence and judicial confession. So far as the circumstantial evidence is concerned, the only circumstance appearing against the accused/ appellant is that he is the husband of the deceased and living in the same house. The incident took place on the Diwali day. Both the husband and wife were enjoying Diwali by lighting lamps, etc., and thereafter the husband left for his parental place whereas the wife was found missing. Subsequently, the dead body of the deceased was found in another''s house. We are of the view that the single circumstance is not sufficient to establish the guilt of the accused.

In the case in hand, PW-5, Sri J P Chakraborty, Judicial Magistrate, recorded the confessional statement of the accused, and he has deposed that the accused was produced before him on 25.10.1995 at 1.00 pm and thereafter he cautioned him and gave time for reflection and after recording the confessional statement the accused was sent back to jail hajot at 3.00 pm. Learned Magistrate has categorically stated that "within these 2 hours, i.e., 1.00 pm to 3.00 pm, I did all the formalities regarding the confession".

Law does not lay down any fixed period/time to be given for reflection to the accused for recording the confession. However, in a series of decisions, the Apex Court has observed that so far the court is concerned, the recording of confession should not be in a mechanical manner and the Magistrates entrusted with the job must take up the matter seriously and do justice in the matter as because confession so recorded by him will decide the fate of the accused in the murder trial. That apart, the Magistrates must be satisfied regarding voluntariness of the confession-maker and for that purpose probe the same by putting specific questions. As a matter of facts, a certificate to that effect is to be given by the Magistrate recording confession. In the present case, we find that no such certificate was given and the trial Judge had tried to over-look the matter by stating that the certificate is printed in the form itself. Printing of certificate in the form is not the end. It is the means to know as to how and to what extent the Magistrate has applied his mind in recording the statement.

Law is more or less well settled as has been observed by the Apex Court in a catena of decisions that at the time of recording confessional statement, we do not find that either of the above two questions were put to the accused although PW-5 in his deposition states that he asked the accused as to why he wants to make the confessional statement. Even if this question was asked as claimed by him, the reply is not available. In absence of the above, we are constrained to hold that the confessional statement in the present case cannot be acted upon.

Further, we find that the law is well-settled that before basing the conviction of an accused solely on the judicial confession, the Court is required to examine whether the confession is perfectly voluntary and that it is true and trust-worthy.

In the impugned judgment, we find that the learned trial Judge has not embarked upon the above two question although the conviction of the accused is based solely on the judicial confession.

So far the two relevant questions, as stated by us above, are concerned, it seems that neither the learned Judicial Magistrate nor the trial Judge was aware of the above requirement of law, and we also find in many cases that the recording Magistrates do not comply with the same. The Registry of this Court will inform all Judicial-Magistrates concerned that at the time of recording confessional statement u/s 164, Cr. P.C. they are bound to put the following two questions to the accused persons(s) and record both questions and answers in the form itself before proceeding with the recording of confession :

(1) Why you want to make confession ?

(2) I assure you that in case you decline to confess, you will not be sent back to police or in police custody.

Such assurance is needed before the accused makes up his mind and decides whether to make confession or not.

In view of what has been stated above, we find that the judicial confession as in Exhibit - 4 cannot be relied upon and once the judicial confession is thrown out of consideration, there is absolutely no other material or evidence to hold the accused guilty of the offence charged. There may be some scope for suspicion arising against him, but that cannot take place as evidence. Accordingly, the present appeal is allowed and the conviction and sentence awarded by the learned trial Judge is set aside because the accused is not held guilty of the offence. Let the appellant be released forthwith if he is not wanted in any other case.

In the result, the appeal stands allowed. Send down the records to the trial Court.