Where the evidence is of circumstantial nature, the facts and circumstances from which the conclusion of guilt is to be deduced and drawn should, in the first instance, be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and they should not be explainable on any other hypothesis except that the accused is guilty. In other words, there must be chain of evidence so complete as to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.
The confessions made to a police officer and a confession made by any person while he or she is in police custody cannot be proved against that person accused of an offence. Of course, a confession made in the immediate presence of a Magistrate can be proved against him. The last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
The reason behind this partially lifting of the ban against confessions and statement made to the police is that if a fact is actually discovered in consequence of information given by the accused it affords some guarantee of truth of that part and that part only, of information which was the clear immediate and proximate cause of the discovery.
The Sessions Judge has relied upon the testimonies of P.W. 8 Manish Kummath and P.W. 10 Dr. Sanjeev Lalwani in support of this circumstance. These witnesses deposed that a Committee was constituted and he was also one of the members of the said Committee. He further deposed that dead body of one unknown person was shown to Surendra Koli and a piece of Chalk was also given to him so that he could demonstrate the manner in which he used to cut the bodies into pieces and in their presence accused marked the portion of dead body. The Committee thereupon examined recovered bones and found that marking done by Surendra Koli tallied with the marks on the recovered bones. In our opinion report of this committee is not admissible in evidence. It would transpire from the testimony of P.W. 8, Manish Kummath that when Surendra Koli was brought before the committee, he was in police custody. He also deposed that Surendra Koli was asked to demonstrate how he used to cut dead bodies into pieces and thereafter, he marked the portion of dead bodies with chalk. This circumstances amounts to his confession. In this connection, section 26 of the Evidence Act may be noticed and it envisages that no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Learned A.G.A canvassed that the deposition of P.WS. 10 and P.W. 8 are admissible because sections 24-30 limit the admissibility of statement and the demonstration of cutting of body by A-2 is admissible under section 8 of the Evidence Act. In the instant case the demonstration of A-2 was in response to a question as to how he used to cut the dead body is not admissible under section 8 of the Evidence Act.
The act of recording confessions under section 164 of the Code of Criminal Procedure is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirement of sub-section (3) of Section 164 Cr.P.C. are fully satisfied. It would of course be necessary in every case to put the questions and the questions intended to be put under sub-section (3) of Section 164 Cr.P.C. should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in section 24 of the Indian Evidence Act. There can be no doubt that when an accused person is produced before the Magistrate by the Investigating Officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to Jail custody and given him adequate time to consider whether he should make a confession at all. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of influence proceeding from a source interested in the prosecution still lurking in the mind of the accused. In case the Magistrate discovers on such an enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self interest, of course of trial, even if contrive subsequently to retract the confession. Beside administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 Cr.P.C., namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow. He should also, in plain language, be assured of protection from any sort of apprehended torture or pressure or such extraneous agent like police, in case he declines to make the statement and he give the assurance that even he declines to make the confession he shall not be remanded to police custody. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes, is not born out of any extraneous influence exerted on him. That indeed is the essence of a "voluntary statement within the meaning of the provisions of Section 164 Cr.P.C.". Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such on the record, proof of compliance that the imperative requirement of the statutory provision, as would satisfy the court that sits in judgement in the case that the confessional statement was made by the accused voluntary and the statutory provisions were strictly complied with. Section 164 of the Code of Criminal Procedure is a salutary provision which lays down certain precautionary rule to be followed by the Magistrate regarding a confession so as to ensure the voluntariness of the confession and the accused be placed in a situation free from threat or influence of the police. Section 164 Cr.P.C. provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with.
The next ground urged for assailing the confessional statement is that there is no provision for videography of the confessional statement and further the same is not admissible in evidence. The submission of learned counsel is not loaded with any substance and confession is admissible.
The confession has been retracted by Surendra Koli when he was examined under section 313 Cr.P.C. It is well settled that a confession, and truthfulness, is an efficacious proof of guilt. The court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstances and the probabilities of the case. Whatever be the terminology one rule is almost certain that no judgement of conviction shall be passed on an uncorroborated retracted confession.
The Apex Court in Shashi Kant Singh has held that fresh examination-in-chief and not only their presentation for the purpose of cross examination of the newly added accused is the mandate of section 319 (4) of the Cr.P.C.
Having considered the above decisions and regard being had to the facts on record, after the appraisal of entire evidence, we do not propose to direct for retrial inasmuch as we have converged to the firm opinion that there is no admissible evidence against A-1 (Maninder Singh Pendher) in this case. The courts below committed a serious error in proceeding on the basis that for proving the defence, the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the court is not a correctly oriented approach.
The object of the section 313 Cr.P.C is to give an accused an opportunity to explain the incriminating circumstances being cited against him.
Suspicion however great it may be, cannot take the place of legal proof. A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law.
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