Confessional statement, not signed or proved by the Magistrate who recorded it, cannot be treated as true u/s 164 CrPC: Gauhati High Court

Gauhati High Court

Gauhati High Court: The present jail appeal was preferred under Section 374 of the Criminal Procedure Code, 1973 (‘CrPC’) challenging the impugned judgment and order dated 01-10-2004 passed by the Additional Deputy Commissioner (Judicial), Phek, Nagaland under Sections 302 and 376 of the Penal Code, 1860 (‘IPC’), whereby the petitioner-accused was convicted and sentenced to undergo imprisonment for life.

The Division Bench of Sanjay Kumar Medhi and Budi Habung*, JJ., held that the document, which was not signed or proved by the Magistrate, who had recorded the confessional statement of the petitioner could not be treated as true under Section 164 of CrPC. Thus, the Court did not accept the said document to be a true confessional statement of the petitioner and therefore, the same was not relied on by the Court for conviction of the petitioner for murder and rape. The Court held that the Trial Court’s finding was without any substance as it lacked both material and circumstantial evidence to convict the petitioner. Thus, the Court quashed and set aside the impugned judgment and order.

Background

On 18-05-2003, a written request for registration of the case was received by the Officer-in-Charge, from one Nuvotsothe complainant stating therein that on 17-05-2003, his wife went to the field and did not return. Thereafter, when her body was found it was observed that she had been raped and murdered as her body was naked and blood was oozing from her private part and thus, the complainant requested to take necessary action.

The Trial Court stated that despite searches made in the Court and office, the records of the present case could not be traced out. Thus, the Trial Court was directed to reconstruct the records and as a result, the Trial Court found out and collected some documents. The records revealed that the case had proceeded for trial and upon completion of the evidence of prosecution witness, the petitioner was examined under Section 313 of CrPC where he was stated to have admitted his guilt of commission of the alleged offence of murder and rape upon the complainant’s wife. On completion of the trial, the petitioner was convicted and sentenced to undergo life imprisonment for offence under Sections 302 and 376 of IPC.

Later, the petitioner made a representation before the Government praying for a pre-mature release. But as the said application was not considered, the petitioner filed a petition before this Court which was disposed with a direction to the respondent to consider the representation submitted by the petitioner. The said application was accordingly considered and rejected on the ground that a person convicted under Section 376 of IPC for committing rape was not entitled to be released pre-maturely. Being aggrieved, the petitioner preferred the present appeal.

Analysis, Law, and Decision

The issue for consideration was “whether in the absence of any other evidence, the petitioner could be convicted solely based on his socalled admission and unsigned confessional statement?”.

The Court noted that the Additional Deputy Commissioner had recorded the confessional statement of the petitioner wherein he had narrated the details of the incident and confessed his guilt stating that he had committed murder of the complainant’s wife by strangulating her and thereafter, he had committed sexual intercourse with her dead body. The Court also noted that despite all efforts made to recover and trace out all the Trial Court’s record, the same could not be found out except for few documents, that is, the copy of FIR, the confessional statement of the petitioner and the impugned judgment and order which was collected from the District Jail authority.

The Court opined that in the present case, although the original records were not available, however, it was discernible from the available records that right from the beginning, the investigation of the case was not properly and adequately done as there was no record of the Investigating Officer (‘IO’) visiting the place of occurrence, drawing of sketch map of the crime scene, recovery, or seizure of any other incriminating materials and weapon of offence or any materials including blood sample for FSL and expert opinion. The Court stated that there was also no record of the IO making any recovery based on the disclosure statement given by the petitioner or if made whether it was made while inside the custody or thereafter.

The Court further stated that the body of the complainant’s wife was found with blood and semen stained on her private part, but no blood stain was collected and sent for experts’ opinion. Also, no post-mortem examination was conducted over the dead body to ascertain the cause of death of the deceased. The Court opined that these were some basic requirements in the death case, however, the same were not done and in absence of any other evidence, it was un unable to be convinced that it was the petitioner and the petitioner alone who caused the death of the complainant’s wife and thereafter committed sexual intercourse with her.

The Court observed that although the petitioner was convicted solely on his confessional statement, there was no record of the confessional statement except the unsigned xerox copy of the confessional statement containing the signature of the police and therefore, the Magistrate was not summoned to prove the said document. The Court thus held that the document, which was not signed or proved by the Magistrate, who had recorded the confessional statement could not be treated as true under Section 164 of CrPC. The Court opined that as per Section 164(4) of CrPC, the confessional statement of the accused shall be signed by the person making the confession, but in the present case, the petitioner did not sign the confessional statement, therefore, non-compliance of Section 164 of CrPC caused injury to the petitioner in his defence on merit. Thus, the Court did not accept the said document to be a true confessional statement of the petitioner and therefore, the same was not relied on by it for petitioner’s conviction.

The Court stated that in the present case, the prosecution miserably failed to prove its case against the petitioner beyond reasonable doubt for commission of the offences under Sections 302 and 376 of IPC. The Court also stated that no circumstantial evidence was also made out against the petitioner for commission of the alleged offence. The Court noted that after completion of investigation, the petitioner was not examined under Section 313 of CrPC, to enable him to personally explain circumstances appearing in the evidence against him, nor was his statement recorded. Further, Section 235(2) of CrPC provided that if the accused was convicted, the Judge shall hear the accused on the questions of sentence, and then pass sentence on him according to law. However, in the present case, there was no record of hearing the petitioner on the quantum of sentences.

The Court held that the Trial Court’s finding was without any substance as it lacked both material and circumstantial evidence to convict the petitioner. Thus, the Court quashed and set aside the impugned judgment and order.

[Kedukhoyi v. State of Nagaland, 2024 SCC OnLine Gau 620, decided on 29-05-2024]

*Judgment authored by: Justice Budi Habung


Advocates who appeared in this case:

For the Petitioner: Sentiyanger, legal Aid Counsel

For the Respondent: Govt. Advocate NL

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