Criminal Appeal (D.B) No.217 of 1991(R)
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Against the judgment of conviction and order of sentence dated
16.9.1991 and 17.9.1991 passed by 6th Additional Sessions Judge,
Dhanbad in Sessions Trial No.83 of 1987.
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Shyamal Kumar Dutta ...............................Appellant
VERSUS
State of Bihar now Jharkhand ................Respondent
For the Appellant: M/s. Jay Prakash Jha and S.P.Jha
For the State : Mr. Binod Singh, A.P.P
P R E S E N T
THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
THE HON'BLE MR. JUSTICE R. R. PRASAD
By Court: The appellant was put on trial along with 9 accused
persons for committing murder of one Umesh Sharan, Chief
Executive-cum-Personnel and Administrative Officer of Menally
Bharat Industries , Kumardubi in furtherance of their common
intention after hatching conspiracy and also for causing
disappearance of the evidence of the murder in order to screen
themselves from the legal punishment.
The trial court having found the appellant guilty for the
offences under sections 302/34/201 and also under section 120(B)
of the Indian Penal Code sentenced him to undergo imprisonment for
life for each of the offences under sections 302/34 and 120(B) of the
Indian Penal Code and further to undergo rigorous imprisonment for
a period of 5 years under section 201 of the Indian Penal Code. Both
the sentences were ordered to be run concurrently.
The case of the prosecution is that on 23.3.1986 at about 7.30
A.M. the deceased Umesh Sharan, Chief Executive-cum-Personnel
and Administrative Officer of Menally Bharat Industries , Kumardubi
had come to Rekhrai Automobile Service Station for servicing of his
car. When the car was put for servicing, Umesh Sharan sat in the
office of the said service station. Meanwhile, Nirmal Singh (P.W.2)
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son of the owner of the Petrol Pump and other employees of the
service station when were engaged in providing fuel to customers,
they heard four shots of firing, upon which Nirmal Singh saw 3-4
persons coming out of the office of the Petrol Pump. All of them fled
away. Thereupon Nirmal Singh saw Umesh Sharan under the pool of
blood and, therefore, he took Umesh Sharan to Das Nursing Home
by a car. Meanwhile, Gadadhar Tanti (P.W.22) the then Officer-in-
Charge of Chirkunda Police Station on getting information that some
body has shot at Umesh Sharan in the Petrol Pump, he made entry in
the Station Diary and rushed to Petrol Pump but there he could know
that Umesh Sharan has been shifted to Das Nursing Home at
Sheolibari, Chirkunda and hence, he came over there and found the
injured being provided with first aid. But when his condition got
deteriorated, he was sent to Sub-divisional Hospital, Asansol and one
A.S.I Ramdeo Giri was asked to accompany him. After giving such
instruction to A.S.I, Gadadhar Tanti came back to service station and
recorded the Fardbeyan (Ext.3) of Nirmal Singh (P.W.2), upon which
formal first information report (Ext.8) was registered. The said
Gadadhar Tanti (P.W.22) himself took up the investigation of the
case. In course of investigation, he seized broken spectacle and also
fired cartridge under seizure list (Ext.4). Later on, he received
inquest report (Ext.5), dead body challan ( Ext.6) and even photo
copy of the post mortem report (Ext.7) from Sub-divisional Hospital,
Asansol. According to post mortem report conducted by
Dr.R.R.Mukherjee (P.W.23) firearms injuries were found over the
chest, abdomen and thigh. Some of the injuries were found charred
and the Doctor had recovered cartridges from the aforesaid injuries.
In course of investigation, the Investigating Officer on
29.3.1986 arrested the appellant, who confessed his guilt before him.
Therefore, the appellant was forwarded before the Magistrate on
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30.3.1986 for recording his confession. Accordingly, Sri R.R.P. Deo
(P.W.1) the then Judicial Magistrate, Dhanbad recorded his
confession (Ext.1) under section 164 of the Code of Criminal
Procedure on 31.3.1986.
On completion of investigation, police submitted charge sheet
against the appellant and others, upon which cognizance of the
offence was taken and in due course when the case was committed
to the court of sessions, charges were framed to which the appellant
pleaded not guilty and claimed to be tried.
The prosecution in attempt to prove the charges examined as
many as 24 witnesses but most of the witnesses either have been
declared hostile or were tendered.
The trial court finding the case to be proved as that of
homicide did hold the appellant guilty on the basis of only
confession made by this appellant under section 164 of the Code of
Criminal Procedure whereas all the other accused persons were
acquitted.
Being aggrieved with the order of conviction and sentence,
this appeal has been preferred.
Learned counsel appearing for the appellant submits that
there has been absolutely no evidence whatsoever showing
involvement of the appellant in the alleged offence in any manner
except confession which has been retracted and that too, it is
exculpatory in nature, still the trial court recorded the order of
conviction, though such confession was never recorded as per the
statutory requirement as enshrined under section 164(4) of the Code
of Criminal Procedure, that is to say without being satisfied that the
appellant had made statement voluntarily without any fear.
Therefore, the impugned order of conviction and sentence passed by
the trial court is fit to be set aside.
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Before proceeding further in the matter, it would be pertinent
to take notice of the statement (Ext.1) made by this appellant under
section 164 of the Code of Criminal Procedure wherein it has been
stated that while he was sleeping in the night of 22.3.1986 along
with others, he was made to wake up by one Ajay by saying that one
Parmanand Singh is calling them but he did not go to Parmanand
Singh. On the next day, i.e, 23.3.1986 in the morning, Parmanand
Singh came and asked him to come along with him as they have to
beat one person by fists and slaps but he refused to accompany him,
then Parmanand Singh said that it is to be done at the instance of
Suresh Jha. Thereafter Parmanand Singh brought him near the
Telephone Exchange and asked to go to the Petrol Pump where he
will find Pato Roy and when he came near the Petrol Pump, he saw 4
persons entering into the cabin of the Petrol Pump. Meanwhile, he
was also asked to join and when he came inside the cabin he
suddenly noticed that all the accused persons took out their revolvers
and fired shots upon a person to whom he was not knowing and as
such, he became perturbed as he was not knowing that they would
kill a person. Therefore, he fled away along with other accused
persons. Thereafter he came near a temple from where he saw all
the accused persons giving their weapons to one Manoj Mishra with
whom he watched a cinema on that day and then he took Manoj
Mishra on his bye-cycle to the residence of one D.N.Jha to whom
Manoj Mishra gave revolvers and cartridges to keep with
Thereafter, on being asked, Manoj Mishra disclosed to him that it
was Suresh Jha, who got Umesh Sharan murdered.
Admittedly the confessional statement (Ext.1) does not
contain the memorandum at the foot of statement as required in
terms of section 164(4) of the Code of Criminal Procedure, as such
Ext.1 never discloses that before recording confession, the
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Magistrate ever explained him that he is not bound to make
confession and that, if he does so, it may be used as evidence
against him. Furthermore, nothing appears to be there to show that
the Magistrate before recording confession satisfied himself by
putting question that such confession is being made voluntarily. In
spite of non-observance of the statutory requirement, the trial court
by putting reliance did find the appellant guilty by holding that
absence of recording of the memorandum of appellant being warned
before recording statement is mere an irregularity and not an
illegality which is curable provided the Magistrate concerned could
satisfactorily explain that such warning had actually been given.
Since the Magistrate (P.W.1) in his evidence has testified that before
recording the statement, warning was given, the trial court did not
find confessional statement (Ext.1) being vitiated with any illegality.
We failed to convince ourselves as to under what circumstances it
was held that absence of certificate as required has satisfactorily
been explained by P.W.1 when such warning had never been
recorded anywhere, neither it is there in the Ext.1, as stated above,
nor the same has been recorded in the order sheet of the date when
the confessional statement was recorded which P.W.1 himself admits
in his evidence. We do further find that the statement was recorded
on 31.3.1986 whereas P.W.1 was examined in December,1987,
Therefore, it is hard to believe that the learned Magistrate would be
able to recollect all those acts relating to recording of confession
which took place more than a year and half before. Therefore,
version of P.W.1 that before recording the confession of the
appellant warning, as stipulated in terms of section 164 of the Code
of Criminal Procedure, was given to the appellant and that
Magistrate before recording confession satisfied himself that the
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appellant is ready to confess his guilt voluntarily does not appear to
be convincing at all.
It be stated here that the statutory provisions dealing with
the recording of confessions and statements by the Metropolitan
Magistrate/Judicial Magistrates are contained in Section 164 of the
Code of Criminal Procedure prescribing certain guidelines for
recording of confessions. Unless the Court is satisfied that the
confession is voluntary in nature, it cannot be acted upon and no
further enquiry as to whether it is true or trustworthy need to be
made.
In this regard we may refer to a decision in the case of
Shivappa vs State of Karnataka (AIR 1995 SC 980) wherein it
has been held hereunder:
” From the plain language of Section 164 of the Code
of Criminal Procedure and the Rules and guidelines
framed by the High Court regarding the recording of
confessional statements of an accused under Section
164 of the Code of Criminal Procedure is manifest that
the said provisions emphasize an inquiry by the
Magistrate to ascertain the voluntary nature of the
confession. This inquiry appears to be the most
significant and an important part of the duty of the
Magistrate recording the confessional statement of an
accused under Section 164 of the Code of Criminal
Procedure. The failure of the Magistrate to put such
questions from which he could ascertain the voluntary
nature of the confession detracts so materially from the
evidentiary value of the confession of an accused that
it would not be safe to act upon the same. Full and
adequate compliance not merely in form but in essence
with the provisions of Section 164 of the Code of
Criminal Procedure and the Rules framed by the High
Court is imperative and its non-compliance goes to the
root of the Magistrates jurisdiction to record the
confession and renders the confession unworthy of
credence.”
In view of the facts and circumstances as discussed above,
the instant confession rather retracted confession recorded without
being satisfied that it was given voluntarily, it is certainly unworthy of
credence. Therefore, learned Sessions Judge committed illegality in
placing his reliance on the said confession, though the said
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confession as we have held earlier is not at all to be acted upon, still
we may note that the appellant never came to the place of
occurrence in furtherance of the common intention to commit
murder of the deceased, rather as per the confession made by the
appellant, he was asked to come to a place to simply assault a
person. Moreover, from his confession it does appear that he even
was not knowing as to who was to be assaulted but when he came
to the place of occurrence, he was taken by surprise that other
accused persons committed murder and, therefore, under these
circumstances, the appellant cannot be said to have hatched
conspiracy along with others or to have shared common intention in
commission of the murder of the deceased and that he did
something to cause any evidence of the commission of the murder to
disappear.
In this view of the matter, it was wholly unwarranted on the
part of the trial court to convict the appellant and hence, the order of
conviction and sentence recorded against the appellant is hereby set
aside. Consequently the appellant is acquitted of the charges levelled
against him and is discharged from the liability of the bail bonds.
In the result, this appeal is allowed.
(Amareshwar Sahay, J)
(R.R.Prasad, J.)
Jharkhand High Court, Ranchi
The 19th March, 2009
NAFR/N.Dev