CRIMINAL APPEAL NO. 61 (J) OF 2005 - Gauhati High Courtghconline.nic.in/Judgment/CRLA61J2005.pdf ·...

CRIMINAL APPEAL NO. 61 (J) /05 of 34

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:

TRIPURA: MIZORAM AND ARUNACHAL PRADESH)

CRIMINAL APPEAL NO. 61 (J) OF 2005

Abdul Hakim Quadri

………..Appellant

-Versus-

State of Assam

………Respondent

P R E S E N T HON’BLE THE CHIEF JUSTICE MADAN B. LOKUR

HON’BLE MR. JUSTICE BD AGARWAL

For the Appellant : Mr. B.K. Singh, Amicus Curiae

For the respondent : Mr D.Das, Addl. P.P., Assam.

Date of hearing : 26.7.2011 and 27.7.2011

Date of judgment : 05.09.2011.

JUDGMENT & ORDER (CAV)

B.D.AGARWAL,J.

Having been convicted for the offence of murder and

criminal trespass the convict is challenging the judgment and order

dated 23.11.2004, passed by the learned Addl. Sessions Judge

(adhoc) Kamrup, Guwahati, in Sessions Case No. 51 (K) of 2004. By

the impugned judgment the trial court has convicted the appellant


under Sections 302 and 448 of the Indian Penal Code („IPC‟ in short)

and he has been sentenced to undergo Imprisonment for Life and 1

(one) year rigorous imprisonment with fine and default sentence for

the respective offences. Both the sentences are directed to run

concurrently. Although the accused was also charged under section

354 IPC but the accused has been acquitted from the said charge.

2. We have heard Shri B.K. Singh, learned Amicus Curiae

for the appellant and Shri D.Das, learned Addl. Public Prosecutor

for the State of Assam. We have also gone through the impugned

judgment and evidence proffered by the prosecution during the

trial. While cross-examining prosecution witnesses and also giving

statement under Section 313 of the Code of Criminal Procedure

(briefly „CrPC‟) the accused neither put forward any defence alibi

nor any evidence in defence was tendered.

3. Before venturing into the appreciation of evidence and

the arguments of both the sides it would be proper to give a bird‟s

eye view upon the prosecution story, which runs as follows :-

3.1 The offence took place at about 6 a.m. on 22.4.2003. The

deceased Keshab Kumar Verma was owning a 3 (three)storey

building at G.S. Road, Paltan Bazar, Guwahati. Except his

residential accommodation, the deceased had let-out the entire

building to various tenants for commercial purposes. The deceased

was living in the second floor with his family. The

accused/appellant was practising in „unani‟ medicines. His

chamber was also in the second floor. The residence of the deceased

and the chamber of the appellant were intervened by the shop of

PW 8.


3.2 There appears to be some dispute in between the

deceased and the appellant for non-payment of rent and threat of

eviction of the appellant from the tenanted premise. The murder

was committed in the tenanted chamber of the appellant. After

committing the offence the appellant bolted the door from outside

and then entered the residential accommodation of the deceased

and misbehaved with the daughter and wife of the deceased and

also threatened them for physical assault. However, the appellant

was pushed out of the room. Thereafter, the wife and daughter of

the deceased went in search of their husband/father. With the help

of house guard (PW 3) it was discovered that the deceased was

hammered to death and the dead body was lying inside the

chamber of the accused. Then the door was broken and the

deceased was taken to a nearby private hospital, with a hope that

the deceased had some life. However, the doctors declared the

injured as dead.

4. The written FIR was lodged by the wife of the deceased

almost within an hour, suspecting that her husband was murdered

by the appellant. The FIR was registered as Paltan Bazar Case No.

132 of 2003 under Sections 448, 323, 307, 302, 34 IPC. During the

course of investigation statements of the witnesses were recorded;

inquest upon the dead body was held; statements of some of the

witnesses were obtained under Section 164 Cr.P.C.; necropsy upon

the dead body was conducted. The accused surrendered in the

court on 7.5.2003, after rejection of his application for anticipatory

bail. During interrogation the accused led the investigating officer

for recovery of the hammer, which was alleged to have been used in

the offence of murder. It was followed by giving a confessional

statement by the accused before a Judicial Magistrate on 15.5.2003.


The investigating officer had also seized few other items from the

scene of the crime. After conclusion of the investigation charge

sheet was submitted and the accused was put to trial for the

offences, indicated earlier in this judgment.

5. To bring home the offence the prosecution examined

altogether 14 (fourteen) witnesses. PWs 1 and 2 are the daughter

and wife of the deceased respectively; PW 3 is the watchman of the

building; PWs 4, 6, 8 and 9 are the tenants of the deceased; PW 5 is

the reported witness from the neighbourhood; PW 7 is another

reported witness; PW 10 is the Judicial Magistrate; PW 11 is a

witness to the seizure of hammer; PW 12 is the autopsy doctor and

PWs 13 and 14 are the police officers.

6. After the conclusion of the prosecution evidence

statement of the accused under section 313 CrPC was recorded on

15.9.2004. In the said statement the accused declined his

involvement in the incident but, at the same time, no defence

evidence was tendered. In this way, the trial came to an end and the

impugned judgment was pronounced on 23.11.2004.

7. From the impugned judgment it appears to us that the

appellant has been convicted for the offence of murder and criminal

trespass on the basis of confessional statement; oral evidence of

PWs 1 and 2 and circumstantial evidences.

8. During the course of hearing, the learned counsel for the

appellant argued that the confessional statement ought not to have

been relied upon by the trial court since sufficient time for reflection

was not given and also relevant searching questions were not put to

the accused. In this regard, the learned counsel for the appellant


relied upon the judgment of this court rendered in the case of

Kanhailal Guwalla –vs- State of Assam, reported in (2011) 3 GLR

820, as well as another judgment of this court rendered in State of

Arunachal Pradesh –Vs- Sukdev Urangg & Ors. (Crl. Hill Reference

No. 1 of 2005 DO 5.3.2009). The learned counsel also submitted that

the prosecution evidence did not form a complete chain to hold the

appellant guilty of murder and other offences. With regard to the

recovery of hammer, the learned counsel submitted that this

recovery was also hit by Section 27 of the Evidence Act, inasmuch

as, the statement of the accused was not recorded by the I.O., before

taking him to the place of recovery. In this regard, the learned

counsel cited the authority of Gauhati High Court, rendered in the

case of Deoraj Goala and Anr. –vs- State of Assam; (2011) 2 GLR

(NOC) 1. Finally, the learned counsel submitted that the offences

were committed in a heat of passion and provocation from the

deceased.

9. The learned Public Prosecutor, on the other hand,

contended that there was no infirmity in recording the confessional

statement as well as recovery of the hammer. The learned counsel

submitted that there are more than sufficient incriminating

evidences to affirm the conviction.

10. Apparently and admittedly there is no eye witness to

the offence of murder. This offence has been proved on the basis of

a series of incriminating circumstances. Leaving aside

circumstances like lodging of the FIR promptly, naming the accused

as the sole assailant and his surrender in the court after few days of

the offence, the prosecution is primarily relying upon the following

circumstances:-


(i) confessional statement of the accused/appellant;

(ii) recovery of the dead body from the chamber of the

accused, which was found locked from outside;

(iii) enmity between the accused and deceased for non-

payment of rent;

(iv) recovery of hammer at the instance of the accused; and

(v) abscondence of the accused for nearly two weeks.

11. With regard to the offence of criminal trespass, the

testimony of PWs 1 and 2 are enough, which will be discussed

along with other evidences for the offence of murder.

12. CONFESSION

There are series of judgments from the Hon‟ble

Supreme Court holding that conviction of a person can be recorded

on the sole basis of confessional statement of the accused, provided

it has not been retracted promptly and that such statement has been

given voluntarily and it inspires the confidence of the court.

Without multiplying authorities in this regard, the observations of

Their Lordships of the Apex Court made in the following cases

would be sufficient to sense the values, impact and significance of

confessional statements of an accused in a criminal trial.

12.1. In the case of State of Rajasthan –vs- Raja Ram;

reported in (2003) 8 SCC 180 , the Hon‟ble Supreme Court has

highlighted the inherent strength and value of such a statement in

the following words:-


―……….The law is clear that a confession cannot be used against

an accused person unless the Court is satisfied that it was

voluntary and at that stage the question whether it is true or

false does not arise. If the facts and circumstances surrounding

the making of a confession appear to cast a doubt on the veracity

or voluntariness of the confession, the Court may refuse to act

upon the confession, even if it is admissible in evidence One

important question, in regard to which the Court has to be

satisfied with is, whether when the accused made confession, he

was a free man or his movements were controlled by the police

either by themselves or through some other agency employed by

them for the purpose of securing such a confession. The question

whether a confession is voluntary or not is always a question of

fact. All the factors and all the circumstances of the case,

including the important factors of the time given for reflection,

scope of the accused getting a feeling of threat, inducement or

promise, must be considered before deciding whether the Court is

satisfied that its opinion the impression caused by the

inducement, threat or promise, if any, has been fully removed. A

free and voluntary confession is deserving of highest credit,

because it is presumed to flow from the highest sense of guilt. [See

R. v. Warwickshall: (1783) Lesch 263)]. It is not to be conceived

that a man would be induced to make a free and voluntary

confession of guilt, so contrary to the feelings and principles of

human nature, if the facts confessed were not true. Deliberate and

voluntary confessions of guilt, if clearly proved, are among the

most effectual proofs in law.‖ (emphasis is ours)

12.2 In the case of State (NCT of Delhi) –Vs- Navjot Siddhu;

reported (2005) 11 SCC 600, the Apex Court reiterated the

evidentiary value of confessional statements. The relevant

observations of Their Lordships are as below:-

“32. As to what should be the legal approach of the Court

called upon to convict a person primarily in the light of the


confession or a retracted confession has been succinctly

summarized in Bharat vs. State of U.P. [1971 (3) SCC 950].

Hidayatullah, C.J., speaking for a three-Judge Bench observed

thus:

"Confessions can be acted upon if the court is satisfied

that they are voluntary and that they are true. The voluntary

nature of the confession depends upon whether there was any

threat, inducement or promise and its truth is judged in the

context of the entire prosecution case. The confession must fit

into the proved facts and not run counter to them. When the

voluntary character of the confession and its truth are accepted,

it is safe to rely on it. Indeed a confession, if it is voluntary and

true and not made under any inducement or threat or promise, is

the most patent piece of evidence against the maker. Retracted

confession, however, stands on a slightly different footing. As

the Privy Council once stated, in India it is the rule to find a

confession and to find it retracted later. A court may take into

account the retracted confession, but it must look for the reasons

for the making of the confession as well as for its retraction, and

must weigh the two to determine whether the retraction affects

the voluntary nature of the confession or not. If the court is

satisfied that it was retracted because of an after-thought or

advice, the retraction may not weigh with the court if the general

facts proved in the case and the tenor of the confession as made

and the circumstances of its making and withdrawal warrant its

user. All the same, the courts do not act upon the retracted

confession without finding assurance from some other sources as

to the guilt of the accused. Therefore, it can be stated that a true

confession made voluntarily may be acted upon with slight

evidence to corroborate it, but a retracted confession requires the

general assurance that the retraction was an after-thought and

that the earlier statement was true………..‖

12.3. The aforesaid authorities were again followed in the

case of Bishnu Prasad Sinha –Vs- State of Assam, reported in 2008


2 GLT (SC 1), wherein also, the Apex Court reiterated the legal

position of confessional statements in the following language:

“(31) A confessional statement, as is well known, is

admissible in evidence. It is relevant fact. The court may rely

thereupon if it is voluntarily given. It may also form the basis of

the conviction, wherefore the court may only have to satisfy

itself in regard to voluntariness and truthfulness thereof and in

given cases, some corroboration thereof. A confession which is

not retracted even at a later stage of the trial and even accepted

by the accused in his examination under Section 313 of the Code,

in our considered opinion, can be fully relied upon.‖

13. In view of the importance and sanctity attached to the

confessional statements of the accused, the legislature thought it

proper to put certain preconditions for recording confessional

statements. The requirements of law have been incorporated in

Section 164 CrPC. In the line of statutory requirements, the Gauhati

High Court has also issued certain guidelines to put searching

questions to the accused persons to ascertain that such statements

are given voluntarily and not under threat or influence from any

quarter. At the same time, there are plethora of judgments from the

Apex Court and various High Courts, imploring upon the courts to

ascertain that the confessional statement is voluntary in real sense

and that it contains a true and full account of the incident, before

making it the sole basis for conviction. The safeguards and

protection to be taken by Judicial Magistrates before recording

confessional statements have been discussed in various judgments

and a few of them have been considered by this court in the case of

Kanhailal Guwalla (supra), which are reproduced below :-


13.1 Sarwan Singh Rattan Singh v. State of Punjab, 1957 SCR 953

―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 form 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 give him

adequate time to consider whether he should make a confession

at all. It would naturally be difficult to lay down any hard and

fast rule as to the time which should be allowed to an accused

person in any given case. However, speaking generally, it would,

we think, be reasonable to insist upon giving an accused person

at least 24 hours to decide whether or not he should make a

confession. Where there may be reason to suspect that the

accused has been persuaded or coerced to make a confession, even

longer period may have to be given to him before his statement is

recorded.‖

13.2 Babubhai Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268

― 15. Section 164 [of the CrPC] provides for safeguards for

an accused. The provisions contained therein are required to be

strictly complied with. But, it does not envisage compliance with

the statutory provisions in a routine or mechanical manner.

16. The court must give sufficient time to an accused to

ponder over as to whether he would make confession or not.‖

13.3 State of Punjab v. Harjagdev Singh, (2009) 16 SCC 91

―It is hardly necessary to emphasise that the act of

recording confessions under Section 164 of the Code is a very

solemn act and in discharging his duties in the said section, the

Magistrate is required to take care to see that the requirements

of…. Section 164 of the Code are fully satisfied.‖


13.4. The Division Bench of this Court also in the case of

Sukdev Urangg (supra), reiterated about strict adherence to the

safeguards provided under Section 164 CrPC on the premise that

safeguards are necessary to be followed religiously since conviction

can be based on the basis of a confessional statement. Their

Lordships have observed that the duty cast upon the Magistrates is

a pious one and it does not envisage compliance of the statutory

provisions in a routine and mechanical manner.

14. In the case before us, what we notice is that the accused

surrendered in the court on 7.5.2003 and then he remained in police

custody for a week. Finally, the accused was produced in the court

on 14.5.2003 with a request to record his confessional statement.

According to the Judicial Magistrate (PW10), the accused was then

sent to judicial custody for reflection. On the next day, i.e. on

15.5.2003 the accused was again produced in the court. At that point

of time, the accused was given necessary warnings, cautions and

advices and the accused was specifically told that he was not bound

to give any indictable statement and he was made aware about the

consequences thereof. According to the Judicial Magistrate, despite

the warnings the accused volunteered to give his confessional

statement and then again the accused was given 3 (three) hours

time for reflection and during this period, the accused was kept in

the chamber of the Magistrate, aloof from police officers. Thereafter,

the statement was recorded at 2.30 p.m. Exhibit 12 is the said

statement.

15. In the confessional statement, the accused gave a detail

story about his enmity with the deceased. According to the accused


he was facing eviction from the tenanted premises. He has also

narrated as to how he was harassed by the deceased. The accused

has further elaborated the story as to how he called the deceased in

his chamber and after brief argument he assaulted the deceased

with a hammer. The accused has further stated that after

hammering down the deceased he picked up a knife and rope and

went in the residence of the deceased and scuffled with the wife

and daughter of the deceased.

16. The story narrated by the accused in his confessional

statement is by and large corroborating the incident, deposed by

PWs 1 and 2. The accused is not an illiterate person to take a view

that he could not understand the consequences of making an

indictable statement. However, it is the defence case that the

statement was recorded without sufficient time for reflection. As

indicated earlier, the accused was produced in the court on

14.5.2003 and his statement was recorded in the afternoon on the

next day and during this period he remained in judicial custody.

According to the accused he had given the indictable statement out

of repentance. This fact is further corroborated by the fact of his

surrender. According to the learned defence counsel, the accused

surrendered in the court since the police officers were harassing his

family members and two sons were also arrested by the I.O. on

suspicion. However, this story, argued by the learned defence

counsel was nowhere stated in the confessional statement. The

voluntary nature of the confessional statement can also be inferred

from the statement given by the accused under Section 313 CrPC

To a question by the court the accused replied as below :-


“This is true, Sir. It is a fact that I confessed my guilt

before the Magistrate. But, actually, I did not commit the crime.‖

17. No doubt the accused repeatedly stated before the JMFC

that he did not commit the crime and that he was innocent but the

accused did not explain as to how the dead body was found in his

chamber, why he stayed overnight in his chamber, who else could

have committed the murder and why the accused was not

interested to give any evidence in defence.

18. As regards the submission of the learned counsel that

searching questions were not put to the accused before recording

his confessional statement, which renders such statement contrary

to the Gauhati High Court circular, we are of the view that format

of recording confessional statement is only a guideline in

consonance with the spirit of Section 164 CrPC No doubt the

format has been prescribed to read the mind of the accused and to

ascertain that the indictable statement is not being given under

duress, threat or influence of any person and the guidelines should

be followed in letter and spirit. However, all and sundry infractions

or breach of the format will not render the statement as

inadmissible evidence and the conviction can be recorded on the

basis of it, so long it conforms to the statutory provision of Section

24 of the Indian Evidence Act, 1872 and does not attract or fall

within the purview of Sections 25 and 26 thereof.

19. We have carefully scanned the confessional statement of

the appellant and notice that the Judicial Magistrate took adequate

care to ascertain that the statement was not given under threat or

duress of the police officers. All the relevant queries incorporated in


the High Court circular, which was in vogue at the relevant time,

were made in two stages, before proceeding to record the statement.

The statement is followed by a certificate that the confessions were

made voluntarily and it contains a full and true account of the

statements made by the accused. Under such circumstances, we

hold that the trial court did not commit any error in considering the

confessional statement as incriminating evidence. We are also of the

view that the confessional statement alone is sufficient to affirm the

conviction, but in addition to the said indictable statement we have

number of additional incriminating evidences, which reinforce the

confessional statement.

20. RECOVERY OF DEAD BODY

Almost all the non-official witnesses as well as the

investigating officers have deposed that after little search the

deceased was found lying in injured condition inside the chamber

of the accused. Besides this, the door of the room was also locked

from outside. PW 3 is the guard of the building. This witness has

also deposed that in between 7 a.m. to 7.30 a.m. he saw the accused

leaving the building. Soon thereafter, he heard the outcries of

daughter and wife of the deceased and they were enquiring about

their father/husband. Thereafter, PW 3 helped PWs 1 and 2 to find

out the deceased. Since the chamber of the accused was locked he

peeped through the window and saw the deceased lying by his

face, inside the chamber. Thereafter, the door was somehow opened

with the use of force only to find that the deceased was lying in

injured condition and his body was smeared with blood. Thereafter,

the deceased was taken to a private hospital, where he was declared

dead.


21. In tandem with the testimony of PWs 1, 2 and 3, PWs 4,

5 and 7 have also deposed that the deceased was lying in injured

condition, inside the chamber of the accused.

22. When the aforesaid incriminating evidence was put to

the accused, while recording his statement under section 313 CrPC,

the accused simply replied that he was innocent and the testimonies

were false. However, no explanation was offered as to how the

deceased was found in injured condition in his chamber, which was

locked from outside. In his confessional statement also, the accused

has admitted the fact that he had assaulted the deceased with a

hammer in his chamber. In this way, the incriminating circumstance

of recovery of the dead body from inside the chamber of the

accused stands proved.

23. ENMITY

In his confessional statement the accused has given

vivid description as to how he was entertaining enmity with the

deceased. According to the accused, the deceased was hell-bent to

evict him from the tenanted premises, as he became irregular in

paying the house rent. According to the accused, he was also

receiving threat of dire consequences. Hence, he decided to spend

the previous night in his chamber itself, instead of going home. On

the next morning he called the deceased in his chamber on the

pretext of paying the rent and after brief argument he assaulted the

deceased.

23.1 According to PWs 1 and 2 also, the accused was the

tenant and he had defaulted in paying the house rent and electricity

bill. According to PW 2, on the relevant morning the accused called


her husband into his chamber and the witness saw this from the

window. This deposition corroborates the accused‟s version that he

called the deceased in his chamber on the pretext of paying rent.

23.2 During the course of investigation the investigating

officer (PW 14) had seized one rent receipt book, which shows that

although rent receipts for the months of January, February and

March were prepared in the name of the accused but the rents were

not paid till then. Drawing our attention to the deposition of I.O.

Shri Singh, the learned counsel for the appellant submitted that

there is no evidence of payment of the rent on the date of the

incident then how come the money receipt book was found in the

place of occurrence. The doubt of the appellant‟s counsel can be

repelled from the seizure memo itself, wherein it has been

mentioned that the rent receipt book was produced by PW 2 to the

IO to substantiate the fact of rent due from the accused. In this way

it is not the case of the prosecution that the receipt book was seized

by the I.O. from the chamber of the accused. Be that as it may, the

receipt book contain money receipts of January, February and

March, 2003 and as per the seizure memo payments were still due.

We are also of the view that the controversy regarding payment of

rent should not detain us since the accused/appellant has admitted

in his confessional statement about enmity with the deceased for

non-payment of rent and threat of eviction and that of dire

consequences. For all these reasons, this incriminating evidence also

stands proved.


24. RECOVERY OF HAMMER

The prosecution is also relying upon the evidence of

recovery of a “hammer”, allegedly at the instance of the accused. It

is the prosecution case that as per the opinion of the doctor the

death was caused due to ante-mortem lacerated injuries, which

might have been caused by a blunt weapon. Besides this the

prosecution is also relying upon the confessional statement in this

regard, wherein the accused has also confessed that he hit the

deceased on his forehead with a hammer. According to the learned

Public Prosecutor when the evidence of recovery of hammer from

the spot at the instance of the accused was put to the appellant he

did not deny the said fact.

25. On the other hand, the learned counsel for the appellant

submitted that the recovery was hit by Section 27 of the Evidence

Act inasmuch as before taking the accused to the place of recovery

the investigating officer did not record his statement. In support of

his submission, the learned counsel relied upon the judgment of

this court rendered in the case of Deoraj Goala and Anr. –vs- State

of Assam; (2011) 2 GLR (NOC) 1. In this case adverse interference

against the prosecution was taken along with other circumstances.

26. Section 27 of the Evidence Act is considered to be an

exception to Sections 25 and 26. Section 25 stipulates that no

confession made to a Police Officer can be proved against an

accused. Section 26 is also an identical provision. However, certain

information received from an accused during investigation and

which ultimately leads to recovery of certain facts would be


admissible in evidence U/s 27 of the Evidence Act. For ready

reference, Section 27 is reproduced below:

“27. How much of information received from accused may

be proved.— Provided that, when any fact is deposed to as

discovered in consequence of information received from a person

accused of any offence, in the custody of a police officer, so much

of such information, whether it amounts to a confession or not,

as relates distinctly to the fact thereby discovered, may be

proved.‖

26.1. A bare reading of Section 27 shows that only one

condition is mandatory before taking into consideration the

recovery of any material evidence of the offence at the instance of

the accused is that the accused must be in the custody of a Police

Officer. Section 27 of the Evidence Act nowhere stipulates formal

recording of a statement and that too bearing the signature of the

accused. In the case of Swami Sraddhananda –Vs- State of

Karnataka; (2007) 12 SCC 210, the Hon‟ble Supreme Court has

observed as below:

―36. We have noticed hereinbefore as to why the

investigation was taken over by the Central Crime Branch. As

the interrogation of the appellant, while in custody of the police,

revealed the possibility of the deceased having been buried in the

backyard of her residential house, the Investigating Officer

requested the Sub-Divisional Magistrate to conduct exhumation

proceedings, who in turn, authorized the Taluka Executive

Magistrate (PW-3) to do so. Confession of the accused was not

admissible in evidence. What was admissible only was that part

of the confession leading to the discovery of fact in terms of

Section 27 of the Indian Evidence Act………..‖


26.2 Very recently, a Full Bench of the Gauhati High Court ,

in the case of Rajiv Phukan -Vs- State of Assam; (2010 Cri LJ 338)

was called upon to examine the legal issue whether- “a disclosure

statement need to be reduced into writing in order to make such

statement admissible in evidence under Section 27 of the Evidence

Act”. After detailed examination of law and various authorities of

the Apex Court Their Lordships came to a conclusion that reducing

the information of the accused into writing is not a statutory

prescription, though as a matter of prudence and precaution, to

make the recovery fool-proof and legally admissible, it is advisable

to record such recovery statement. We are also of the view that non-

recording of any such statement will not deal a fatal blow upon the

prosecution case. The relevant observations of the Full Bench are

reproduced below:

―(28)…………When the statute has not made it

mandatory for a police officer to reduce into writing the

disclosure statement of an accused person, it would be impossible

to treat the evidence of the co-villagers as inadmissible and

thereby reject the same. The written record of the disclosure

statement is really required for the purpose of inspiring

confidence of the Court that the statement, as deposed to, had

indeed been made and such a written record would further help

the Court know as to what exactly the accused had stated to the

police and what statement or which part of a given statement of

the accused had really led to the discovery of the fact.

(56) Because of what have been discussed and pointed out above,

we conclude that a 'disclosure statement', to be admissible under

Section 27 of the Evidence Act, is not statutorily required to be

reduced into writing, though prudence demands that such an

information should be reduced into writing in order to enable the

Court to know exactly as to what the accused is allegedly to


have stated and the extent to which the information given by him

is admissible. The reference shall stand answered accordingly.‖

27. In the case before us the fact of recovery at the instance

of the accused was not disputed by the accused, while giving his

statement under section 313 CrPC. On the other hand, PW 11 has

deposed that the accused had accompanied the police officers at the

time of recovery of the hammer. This witness was not cross

examined by the defence to dispute the fact of recovery of the

weapon, on being led by the accused. Even the investigating officer

was also not confronted about any infirmity in the recovery of the

hammer. Under such circumstances we are persuaded to take into

consideration the recovery of the hammer as well an incriminating

evidence.

28. ABSCONDENCE

Admittedly, the offences were committed on 22.4.2003

and the accused surrendered in the court only on 7.5.2003.

According to watchman (PW 2), just before the incident he had seen

the accused leaving the building. The accused has also admitted in

his confessional statement that on the previous night he

intentionally did not go home and stayed back in his chamber.

From this evidence it is abundantly clear that the accused

absconded from the scene till his surrender. Had the accused was

not involved in the crime he would have certainly visited the place

of occurrence, as few other tenants did, to ascertain the cause of the

death of the owner of his tenanted premise. PW 9 has also deposed

that he accompanied the police officers to the house of the accused

but he was found untraceable. In the cross examination this


incriminating evidence was not disputed or explained. Strangely,

neither the investigating officer was given any suggestion in the

cross examination that the accused was very much available in his

house nor the accused also gave any evidence to dispute the

allegation of his abscondence. The fact of absconding of an accused,

though weak evidence in itself, can also be taken as an adverse and

incriminating circumstance U/s 8 of the Evidence Act to reinforce

other circumstances available in the case and proved by the

prosecution. In this regard one may refer to the judgment of the

Apex Court rendered in the case between Dhananjoy Chatterjee @

Dhana Vs. State of West Bengal; reported in (1994) 2 SCC 220.

29. CIRCUMSTANTIAL EVIDENCE

Law of circumstantial evidence is time tested. It is the

settled position of law in the criminal jurisprudence that there is no

rule of evidence that a conviction cannot be recorded on the basis of

circumstantial evidence. However, the primary requirement of law,

before acting upon circumstantial evidences is that the

circumstances must form a complete chain, consistent with the guilt

of the accused, sans any other theory. The law was initially

expounded in the case of Hanumant Govind Nargundkar -Vs- State

of Madhya Pradesh (AIR 1952 SC 343) in this way:

"It is well to remember that in cases where the evidence is

of a circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should be in the first instance

be fully established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every hypothesis

but the one proposed to be proved. In other words, there must be


a chain of evidence so far complete as not to leave any reasonable

ground for a 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."

29.1 The guidelines given by the Apex Court for acting on

circumstantial evidence in the aforesaid case was further amplified

in the case of Sharad Birdhichand Sarda v. State of Maharashtra

(AIR 1984 SC 1622): (1984) 4 SCC 116. The golden principles of the

doctrine of circumstantial evidence, as enunciated in the above case,

are reproduced below:

―153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against an

accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned ‗must or should‘ and not ‗may be‘

established. There is not only a grammatical but a legal

distinction between ‗may be proved‘ and ‗must be or should be

proved‘ as was held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra, where the following observations were

made.

‗Certainly it is a primary principle that the accused must

be and not merely may be guilty before a Court can convict and

the mental distance between ―may be‖ and ― must be‖ is long and

divides vague conjectures from sure conclusions.‘

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

not be explainable on any other hypothesis except that the

accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,


(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) there must be a chain of evidence so compete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.‖

29.2 Without burdening this judgment about the legal

principle of recording conviction on the basis of incriminating

circumstances, we would like to refer to the observations made by

the Apex Court in the case G Parshwanath –Vs- State of

Karnataka, reported in (2010) 8 SCC 593, which are as below:

―23. In cases where evidence is of a circumstantial nature,

the circumstances from which the conclusion of guilt is to be

drawn should, in the first instance, be fully established. Each fact

sought to be relied upon must be proved individually. However,

in applying this principle a distinction must be made between

facts called primary or basic on the one hand and inference of

facts to be drawn from them on the other. In regard to proof of

primary facts, the court has to judge the evidence and decide

whether that evidence proves a particular fact and if that fact is

proved, the question whether that fact leads to an inference of

guilt of the accused person should be considered. In dealing with

this aspect of the problem, the doctrine of benefit of doubt

applies. Although there should not be any missing links in the

case, yet it is not essential that each of the links must appear on

the surface of the evidence adduced and some of these links may

have to be inferred from the proved facts. In drawing these

inferences, the court must have regard to the common course of

natural events and to human conduct and their relations to the

facts of the particular case. The court thereafter has to consider

the effect of proved facts.‖


30. In the case before us, the incriminating circumstances

are being considered only as additional evidence to lend support to

the confessional statement of the accused/appellant. In our

considered opinion, the confessional statement is self-sufficient to

affirm the conviction, as it does not suffer from any patent illegality.

On the other hand, the same is consistent with the oral testimony of

the witnesses. Hence, we find no hesitation to further hold that the

conviction can be affirmed either on the basis of confessional

statement independently or on the basis of circumstantial

evidences. After scanning the entire evidence on record we agree

with the learned trial judge that the offences of murder and criminal

trespass were committed by the accused/appellant and non-else.

31. The next question posed for our consideration was

whether the accused had the intention to commit murder. The

offence of culpable homicide has been defined in Sec.299, whereas

the offence of murder has been defined in Sec.300 IPC. The gravity

with which the offence is perpetrated is the basic distinction in

between the above two offences. In other words, to bring home the

offence within the mischief of Sec.300, the prosecution has to

establish that the offender had committed the act of culpable

homicide with definite intention or that the offender had the

intention to cause such bodily injury which was likely to cause the

death of the person or knowing that the injuries, he was inflicting,

would be eminently dangerous to the life. It is difficult to get direct

evidence about the intention and knowledge of the assailant. These

ingredients of law have to be inferred from certain circumstances,

like the weapon used in the crime, circumstances under which the


crime was committed, number of wounds inflicted upon the

deceased, situs of the wound etc.

32. In the case at hand the foremost evidence to hold that

the deceased was assaulted to death with clear intention lies in the

fact that on the previous night of the incident the accused had

intentionally stayed back in his chamber, instead of going home.

Had the incident taken place during the normal working hours a

view could have been taken that the deceased must have picked-up

the quarrel with the accused and provoked him for the assault.

However, the incident took place in the early morning, which is

consistent with the prosecution story that it was the accused who

had invited the deceased in his chamber and then assaulted him.

Besides this, as per the medical evidence as many as eight numbers

of lacerated wounds on the forehead and temporal region of the

deceased were inflicted upon the deceased with a blunt object,

which according to the prosecution was a hammer. The number of

assaults, situs of the wounds and the nature of the weapon used in

the assault clearly demonstrates the intention of the appellant to kill

the deceased. Hence, we find no difficulty to hold that the offence of

culpable homicide falls under clause firstly to section 300 of the

Indian Penal Code, which is punishable under Section 302.

33. Before concluding the Judgment, we would also like to

make certain observations regarding the mode and method of

recording statements of accused persons under Section 313 of the

Code of Criminal Procedure, 1973. It has been noticed that the

Judicial Magistrates and the Sessions Judges either record such

statements in a perfunctory manner or sometime they delegate this


power to the „Peshkars‟, without realising the importance, object

and sanctity thereof. Many times, the trial Judges formulate lengthy

questions, as in the instant case, mixing up various incriminating

evidences in one question. Large numbers of judicial officers are in

the habit of framing witness-wise questions. It is not advisable

because a particular witness may speak about a number of

incriminating circumstances. If one question is prepared for a

particular witness it may include several circumstances, and, if such

question is put to an accused it will be difficult for the accused to

give a precise answer. Sometime, minor incriminating

circumstances are not put to the accused persons, considering them

to be unnecessary, unmindful of their relevance from the view point

of accused and the appellate courts. Similarly, many trial Court

Judges neither feel it essential to give an opportunity to the accused

persons to offer their defence story, other than giving answer to the

pointed questions nor the accused are even asked whether they

intend to give evidence in defence, although clause (b) to sub-sec (1)

to Sec 313 postulates general questioning to the accused.

33. Before adverting to the objectives of Sec. 313 CrPC and

the intention of the legislature to have such a provision in adversary

system of criminal trials, it is advisable to reproduce Section 313 in

extenso, which runs as below:

―313. Power to examine the accused.—(1) In every inquiry or

trial, for the purpose of enabling the accused personally to

explain any circumstances appearing in the evidence against him,

the court—

(a) may at any stage, without previously warning the accused,

put such questions to him as the court considers necessary;


(b) shall, after the witnesses for the prosecution have been

examined and before he is called on for his defence, question him

generally on the case:

Provided that in a summons case, where the court has

dispensed with the personal attendance of the accused, it may

also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is

examined under sub-section (1).

(3) The accused shall not render himself liable to punishment

by refusing to answer such questions, or by giving false answers

to them.

(4) The answers given by the accused may be taken into

consideration in such inquiry or trial, and put in evidence for or

against him in any other inquiry into, or trial for, any other

offence which such answers may tend to show he has

committed.‖

34. The very purpose of introducing Section 313 in the

scheme of criminal trial is to afford an opportunity to the accused

personally and that too, without administering any oath to explain

the circumstances, appearing against him/her during the trial. The

questioning need not be confined to the inculpatory evidence alone,

since the law has employed the words „any circumstances‟ in sub-

sec (1). Besides this, relevance and significance of Sub-Section (4) to

Section 313 also cannot be lost sight of, inasmuch as, admissions

and confessions made by an accused in the said statement can be

given due weightage and considered along with other admissible

evidence. There is a catena of judicial pronouncements highlighting

the usefulness of these statements and as to how it empowers the

Courts to take into consideration the answers given by the accused.

In a number of judgments, it has also been held that false answers

given by an accused in his statement, given under Section 313 CrPC,


can also be counted as providing a missing link in the prosecution

case.

34.1 For the sake of brevity, we would like to quote only a

few trend-setting judgments from the Hon‟ble Supreme Court.

34.2 Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740:

―18. What is the object of examination of an accused under

Section 313 of the Code? The section itself declares the object in

explicit language that it is ―for the purpose of enabling the

accused personally to explain any circumstances appearing in the

evidence against him‖. In Jai Dev v. State of Punjab

Gajendragadkar, J. (as he then was) speaking for a three-Judge

Bench has focussed on the ultimate test in determining whether

the provision has been fairly complied with. He observed thus:

―The ultimate test in determining whether or not the

accused has been fairly examined under Section 342 would be to

inquire whether, having regard to all the questions put to him, he

did get an opportunity to say what he wanted to say in respect of

prosecution case against him. If it appears that the examination

of the accused person was defective and thereby a prejudice has

been caused to him, that would no doubt be a serious infirmity.‖

19. Thus it is well settled that the provision is mainly

intended to benefit the accused and as its corollary to benefit the

court in reaching the final conclusion.

20. At the same time it should be borne in mind that the

provision is not intended to nail him to any position, but to

comply with the most salutary principle of natural justice

enshrined in the maxim audi alteram partem. The word ―may‖ in

clause (a) of sub-section (1) in Section 313 of the Code indicates,

without any doubt, that even if the court does not put any

question under that clause the accused cannot raise any grievance


for it. But if the court fails to put the needed question under

clause (b) of the sub-section it would result in a handicap to the

accused and he can legitimately claim that no evidence, without

affording him the opportunity to explain, can be used against

him. It is now well settled that a circumstance about which the

accused was not asked to explain cannot be used against him.‖

34.3 Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1:

―10. The questioning of the accused is done to enable him

to give an opportunity to explain any circumstances which have

come out in the evidence against him. It may be noticed that the

entire evidence is recorded in his presence and he is given full

opportunity to cross-examine each and every witness examined

on the prosecution side. He is given copies of all documents

which are sought to be relied on by the prosecution. Apart from

all these, as part of fair trial the accused is given opportunity to

give his explanation regarding the evidence adduced by the

prosecution. However, it is not necessary that the entire

prosecution evidence need be put to him and answers elicited

from the accused. If there were circumstances in the evidence

which are adverse to the accused and his explanation would help

the court in evaluating the evidence properly, the court should

bring the same to the notice of the accused to enable him to give

any explanation or answers for such adverse circumstance in the

evidence. Generally, composite questions shall not be asked to

the accused bundling so many facts together. Questions must be

such that any reasonable person in the position of the accused

may be in a position to give rational explanation to the questions

as had been asked. There shall not be failure of justice on account

of an unfair trial.‖

34.4 Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 :

―32. Following the law laid down in Narain Singh case the

Apex Court in State of Maharashtra v. Sukhdev Singh further


dealt with the question whether a statement recorded under

Section 313 CrPC can constitute the sole basis for conviction and

recorded a finding that the answers given by the accused in

response to his examination under Section 313 CrPC of 1973 can

be taken into consideration in such an inquiry or trial though

such a statement strictly is not evidence and observed in para 52

thus: (Sukhdev Singh case)

―52. Even on first principle we see no reason why the court

could not act on the admission or confession made by the accused

in the course of the trial or in his statement recorded under

Section 313 of the Code.‖

It is thus well established in law that admission or

confession of the accused in the statement under Section 313

CrPC recorded in the course of trial can be acted upon and the

court can rely on these confessions to proceed to convict him.‖

34.5 Ashok Kumar v. State of Haryana, (2010) 12 SCC 350:

―29. Now we may proceed to discuss the evidence led by

the prosecution in the present case. In order to bring the issues

raised, within a narrow compass we may refer to the statement

of the accused made under Section 313 CrPC. It is a settled

principle of law that dual purpose is sought to be achieved when

the courts comply with the mandatory requirement of recording

the statement of an accused under this provision. Firstly, every

material piece of evidence which the prosecution proposes to use

against the accused should be put to him in clear terms and

secondly, the accused should have a fair chance to give his

explanation in relation to that evidence as well as his own

versions with regard to alleged involvement in the crime. This

dual purpose has to be achieved in the interest of the proper

administration of criminal justice and in accordance with the

provisions of CrPC. Furthermore, the statement under Section 313

CrPC can be used by the Court insofar as it corroborates the case


of the prosecution. Of course, conviction per se cannot be based

upon the statement under Section 313 CrPC.

30. Let us examine the essential features of this section and

the principles of law as enunciated by the judgments of this

Court, which are the guiding factor for proper application and

consequences which shall flow from the provisions of Section 313

CrPC. As already noticed, the object of recording the statement of

the accused under Section 313 CrPC is to put all incriminating

evidence to the accused so as to provide him an opportunity to

explain such incriminating circumstances appearing against him

in the evidence of the prosecution. At the same time, also permit

him to put forward his own version or reasons, if he so chooses,

in relation to his involvement or otherwise in the crime.

31. The Court has been empowered to examine the accused

but only after the prosecution evidence has been concluded. It is a

mandatory obligation upon the Court and besides ensuring the

compliance thereof, the Court has to keep in mind that the

accused gets a fair chance to explain his conduct. The option lies

with the accused to maintain silence coupled with simpliciter

denial or, in the alternative, to explain his version and reasons,

for his alleged involvement in the commission of crime. This is

the statement which the accused makes without fear or right of

the other party to cross-examine him. However, if the statements

made are false, the Court is entitled to draw adverse inferences

and pass consequential orders, as may be called for, in

accordance with law. The primary purpose is to establish a direct

dialogue between the Court and the accused and to put every

important incriminating piece of evidence to the accused and

grant him an opportunity to answer and explain. Once such a

statement is recorded, the next question that has to be considered

by the Court is to what extent and consequences such statement

can be used during the enquiry and the trial. Over the period of

time, the courts have explained this concept and now it has


attained, more or less, certainty in the field of criminal

jurisprudence.

32. The statement of the accused can be used to test the

veracity of the exculpatory part of the admission, if any, made by

the accused. It can be taken into consideration in any, enquiry or

trial but still it is not strictly an evidence in the case. The

provisions of Section 313(4) CrPC explicitly provides that the

answers given by the accused may be taken into consideration in

such enquiry or trial and put in as evidence for or against the

accused in any other enquiry or trial for any other offence for

which, such answers may tend to show he has committed. In

other words, the use of a statement under Section 313 CrPC as an

evidence is permissible as per the provisions of the Code but has

its own limitations. The Courts may rely on a portion of the

statement of the accused and find him guilty in consideration of

the other evidence against him led by the prosecution, however,

such statements made under this section should not be considered

in isolation but in conjunction with evidence adduced by the

prosecution.‖

35. Keeping in mind the salutary objects behind recording

the statements of accused under Section 313 CrPC and also noticing

random infraction thereof by the trial Courts, we hereby direct the

subordinate/trial Courts to adhere to the requirements of the

Section. Some of the illustrative guidelines are given below:

(i) The statements should be scrupulously written/

dictated by the trial Magistrates and Sessions Judges

themselves. This power should not be delegated to the

„Peshkars‟ or any other person, even partly.

(ii) While recording such statements, the trial Judges

should not allow either the Public Prosecutors or the


defence lawyers to interfere in the proceeding, except

under compelling circumstances.

(iii) The questions should be precise and in simple

language, which can be understood by the accused

easily and can be answered without difficulty.

(iv) For every incriminating circumstance there should

be a separate question. Two or more circumstances

should not be clubbed together.

(v) No circumstance, whatsoever nature, should be left

out from the questionnaire.

(vi) Full particulars of the accused, like his

father‟s/mother‟s name etc, ordinary and permanent

place of residence, age, occupation and income, if any,

should invariably be recorded.

(vii) In addition to mentioning the number of the case

in the top of the statement, the Magistrate/Judge should

also state his/her name in the statement.

(viii) If the accused appears to be juvenile or claims to be

so, the trial Magistrate/Judge shall make an enquiry as

required under the Juvenile Justice (Care and Protection

of Children) Act, 2000, and rules framed there under

and proceed accordingly.

36. The Registry is directed to place the Judgment before

the Hon‟ble Chief Justice in his administrative side to consider

issuance of a new format of the statement under Section 313 of the

Code of Criminal Procedure, 1973.


37. In the result, the appeal stands dismissed. The

conviction of the appellant under Sections 302 and 448 of the Indian

Penal Code are hereby affirmed. We also do not see any reason to

interfere with the sentences. Consequently, the sentences awarded

by the trial court are also hereby affirmed.

38. Shri B.K.Singh, learned amicus curiae, shall be entitled

to a fee of Rs.7,500/- (Rupees seven thousand five hundred)only for

rendering his valuable legal assistance on behalf of the appellant.

The fee shall be paid from Legal-aid fund.

JUDGE CHIEF JUSTICE

Sushil/dtg

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