Satti Deen vs State of U.P.

I. P. Vasishth, J.—The instant appeal is directed against the judgment of conviction and its corresponding order of sentence dated 211986 passed by Sri M.P.S. Tomar, Sessions Judge, Gonda requiring the appellant to undergo imprisonment for life for an offence punishable under Section 302 of the Indian Penal Code.

The burden of prosecution allegation was that for a number of years prior to the fateful incident of June, 1985 the appellant Sattidcen, son of Rom Bahadur (deceased) was in employment at Ludhiana but his wife and children were living with his parents in the ancestral village Jalalpur situated at an approximate distance of 3 Kms. from'' Police Station Wazirganj in district Gonda. in early June, 1985 the accused had come home on short leave and gathered that his father was carrying on an illicit relationship with his wife which he resented for the obvious reasons. In the normal urge he tried to restrain them from indulging in such type of a sinful iife but it appears that the old man did not pay any heed to his protest.

It was alleged that on 2061985 Ram Bahadur was sleeping outside the main entrance of his house when late in the night at around 11 p.m. one of his distant nephew PW1 Maharaj Bux Dubey heard shrieks and cries of some woman. On getting alarmed Maharaj Bux rushed towards the side of Ram Bahadur but found him lying on a cot in badly wounded condition, there were certain injuries on his face and even though he was bleeding profusedly, was still alive; and his daughterinlaw was weeping closeby. On hearing of commotion a number of neighbours, namely viz. Dina Nath, Chintamani, Bajrangbali Dubey, Ram Pratap Dubey and Rajendra Prasad Dubey also collected there. All these persons took Ram Bahadur on his cot to the village doctor PW11 Jami Ahmad who found him in serious condition and therefore instead of wasting time, asked them to take him to the Government Hospital Wazirganj; but on his way to the Hospital Ram Bahadur succumbed to the injuries. The aforesaid people thereupon took him to the Police Station where Maharaj Bux Dubey lodged his report Ext. Ka1 giving rise to the registration of a formal crime case.

PW12 Rama Shankcr Singh Yadav took up the investigation and inspected the place of occurrence. He prepared a site plan, took charge of the dead body and on completing the inquest proceedings despatched it through PW8 constable Zahirul Hasan to the Mortuary for autopsy. Meanwhile from the spot he lifted some blood stained earth, cot strings and plain earth, which were kept in properly sealed containers and ultimately despatched to the Forensic Science Laboratory for a scientific study. He also examined the witnesses under Section 16L CrP.C.

On the same day the appellant was stated to have approached PW3 Gokran of village Chandapur and on informing him about the incident made a clean breast confession of his guilt. He also solicited his help to avoid the unpleasant consequences but since Gokaran expressed his inability to oblige him, therefore, the accused went away. He was ultimately arrested by the Police on 2461985 in the presence of PW7 Ram Sumiran and one Dayaram.

On interrogation by the Investigation Officer the accused made a disclosure statement and in pursuance thereto produced the Kudal Ext. Ka12 from a place of concealment comprising of dry fodder stack in his house. Since the Kudal was found stained with blood, therefore, on being packed and sealed in a parcel it was also sent to the Forensic Science Laboratory for a scientific study.

On 2261985 at about 1.35 p.m. PW5 Dr. A.K. Dubey conducted autopsy on the dead body of Ram Bahadur and found it carrying the following injuries;

(i) Lacerated wound above left eye brow 3 cm. x 1/4 cm. x muscle deep.

(ii) Lacerated wound between both eye brows 2 cm. x 1/4 cm. x muscle deep (not opened)

(iii) Lacerated wound 1 cm. below left eye 2 cm. x 1/2 cm. x muscle deep.

(iv) Lacerated wound above left ear 1 cm. x 1/4 cm. x cartilage deep.

(v) Eyes bulging out.

(vi) Multiple contusions in anterior aspect of neck and upper part of chest.

Right patella and right kneejoint were also found fractured whereas the abdomen was slightly congested and distended. Larynx was congested and hyoid bone was found broken. Similarly the brain was also found congested and on the right side 2nd, 3rd and 7th ribs and on the left side 5th, 6th and 7th ribs were found fractured.

Recording his observations Dr. Dubey released the postmortem report Ext. Ka4 with the opinion that the death was due to throttling and asphyxia.

On 2561985 the Investigating Officer moved an application dated 2461985 (Ext Ka15) before the C.J.M. Gonda Sri Raj Kumar Sharma PW13 for recording the confession of the accused as he had offered to make such a statement. Sri Sharma ordered for the production of the accused on 2661985 from the judicial custody. Accordingly on 2661985 he recorded the confessional statement Ex. Ka16 made by the accused, endorsed his own certificate thereon expressing his satisfaction about the voluntary nature thereof.

On completion of investigation the police booked the accused for trial and on framing the appropriate, charge for an offence punishable under Section 302 of the Indian Penal Code the learned Sessions Judge took him to trial because he did not plead guilty.

In support of its case the prosecution examined 13 witnesses in all including the informant Maharaj Bux Dubey PW1 and the other above referred material characters. In his statement under Section 313, Cr.P.C. denying the incriminating allegations the accused pleaded false implication with the explanation that he was coerced and blackmailed by the police to make a statement before the C.J.M. at the risk of elimination in a false encounter. No defence was, however, adduced.

On conclusion of trial the learned and as a consequence there of rendered the judgment of conviction and passed the impugned order of sentence as indicated hereinbefore. Hence the appeal.

We have carefully scrutinized the entire material on record and heard the parties. The edifice of prosecution is primarily built around the confessional statement of the accused by the then C.J.M. Gonda. Raj Kumar Sharma PW13. Support was also sought from the earlier confessional statement made before PW3 Gokaran and the Kudal recovered at his own instance, which was allegedly used as a weapon of offence.

The learned Sessions Judge did not believe the testimony of Gokaran in the context of extrajudicial confession and we find no reason to overrule him on this aspect because Gokaran had no such terms with the accused so as to inspire latter''s confidence for opening out his heart or soliciting his help in getting over the implications of the crime. In his statement Gokaran conceded that he did not hold any place or position or status in the village community and that he had no visiting terms with the accused. He would have the court believe that the accused had met him on the very next morning of the occurrence at about 6 or 7 a.m. in front of the Police Station itself and confessed the crime. It remains to be explained as to then why Gokaran did not inform the police about the presence of the accused. To crown it all, all these talks took place in the presence of one Arun Kumar who was neither produced in the court nor associated with the investigation. Gokaran rather deliberately delayed making any statement to the Police for atleast 3 or 4 days but the Investigating Officer contradicted him on this score also with the contention that his statement under Section 161, Cr.P.C. was recorded on 2161985 itself.

Before dealing with the confessional statement Ext. Ka16 recorded by Raj Kumar Sharma we would like to dispose of the socalled corroborating evidence revolving around the Kudal allegedly used by the accused as the weapon of offence and produced during the investigation in pursuance to a disclosure statement under Section 27 of the Evidence Sessions Judge returned verdict of guilty Act. The Investigation Officer claimed that it was found stained with blood and sent to the Chemical Examiner for a scientific study but for no explicable reason the report of the Serologist or the concerned expert was held up from the court. In the absence thereof it is quite difficult to believe that it contained traces of any human blood, much less of the same group as that of the deceased. It is besides the point that no disclosure statement was ever recorded and the verbal deposition was stated to have been made in the presence of PW7 Ram Sumeria, who did not support the prosecution; and one Dayaram who was neither produced in the court nor accounted for even by way of semblance of any explanation. Moreover Dr, Dubey was not shown this weapon of offence either during the course of investigation or the trial in an effort to solicit his opinion as to whether the injuries of the deceased could be caused by it.

In the case of Mohinder Singh v. The State, AIR 1953 SC 415; the learned Judge were pleased to hold that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or atleast possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. A similar view was taken in the context of Kartarey and others v. The State of U.P., 1995 SCC (Crl) 803 and Hardayal Prem v. State of Rajasthan, 1991 SCC (Crl) 538. It goes without saying that no explanation good, bad or indifferent, was tendered by the prosecution for this crucial lapse.

That directly confronts the court with the confessional statement Ext. Ka16 of the accused recorded by Raj Kumar Sharma on 2661985. The court is fully conscious of the proposition that a confessional statement recorded under Section 164, Cr.P.C. is not only a good piece of evidence but under certain circumstances may also be of the clinching nature to form the basis of conviction, but then the rules of the practice and prudence, which have since matured into a rule of law, also ordain that the court should be on its guard and examine the probity of such statements with extra caution.

In the case of Shivappa v. State of Karnataka, 1995 SCC (Crl) 323, the learned Judges were pleased to hold that before taking down such a statement, the Magistrate must ascertain and satisfy himself about the voluntary character of the confession by way of putting certain questions and examining the total environments in which the statement is made. Besides the certificate required under Section 164(4) there should also be such independent material on record by way of his endorsements or observations which could reflect upon the voluntary nature of statement. A similar view was taken by the apex Court in the later case of Tulsi Singh v. State of Punjab, 1996 SCC (Crl) 1118, in which it was further observed that the statement itself should indicate that before its being recorded the Magistrate had observed the requisite caution and put questions to the accused to satisfy himself that he was making a voluntary deposition because such is the basic prereuqisite for recording a confession and that a mere endorsement in accordance with subsection (4) of Section 164, Cr.P.C. would not fulfil the requirements.

In the case in hand there is no such material on the basis of which we could feel satisfied that the learned C.J.M. had taken the requisite precautions. A brief note at the start of the statement indicates that the accused was sent to the judicial lockup on 2561985 obviously because on that day he might have come from the police custody who had arrested him on 2461985 but there is nothing to indicate that on 2561985 the accused was informed that it was proposed to record his confessional statement on the next date or that he (C.J.M.) was seized of any police prayer or his (sccused) own offer to record the confessional statement.

The Court deposition of the C.J.M. reveals that on 2561986 he had ordered for summoning the accused from the judicial custody. The statement does not go any further to show as to whether the accused was also informed as to what for he was being called from the judicial lockup. In a manner of speaking till his production in the Court on 2661985 itself the accused was not aware as to what for he was required by the learned C.J.M. and as to whether there vvas any proposal to record his confessional statement.

To put it in plain words, there was no forewarning to the accused and there was no proper opportunity to him to reflect upon the proposed confessional statement. There was no occasion for him to go in for selfintrospection and visualize the implciation of making a confessional statement. The question of holding any consultation with any wellwisher did not arise at all. As a matter of fact the CJ.M. appears to have taken the process of recording the confessional statement in a casual, if not an altogether careless manner; actually a part of his own endorsement thereon reads like "it was taken in my presence and written by my own handwriting." We believe that when he was recording the statement in his own handwriting there could be no occasion for emphasizing the issue of his own presence also.

Be that as it may, the disclosures in the alleged confessional statement do not tally with the scheme of the prosecution because in this deposition it was propoagaied that when at about 11 p.m. the accused got up for an urge to go to the toilet he found that his father was ''indulging'' with his wife and so he picked up a Kudal and hit his father''s knee twice resulting in latter''s death. The postmortem report rules out the possibility of any sexual indulgence by the deceased shortly before his death and the number of injuries on the dead body could not possibly be inflicted by only two blows. Moreover there is no explanation for the throttling and resultant asphyxia; similarly there is no explanation about the broken patella and fractured knee. It is besides the point that the concerned woman was neither subjected to medical examination nor examined as a witnesses.

In the totality of the circumstances we thus do not feel inclined to affirm the findings of the learned Sessions Judge. On The other hand we cannot possibly resist the inference of stark failure on the part of the prosecution to establish its case beyond all reasonable doubt. Accordingly we allow the appeal and on setting aside the impugned judgment of conviction and its corresponding order of sentence dated 211986 acquit the appellant. He is on bail, he need not surrender to his bonds which are hereby cancelled.