SHIVAPPAversusSTATE OF KARNATAKA

                                  SHIVAPPA                                     A
                                       v.
                           STATE OF KARNATAKA

                             NOVEMBER29, 1994

               [DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.]                        B
        Criminal Procedure Code, 1973-Section 164-Confession-
    Evidentiary value-Voluntary statement-Recording of confessional
    statement-Duty of Magistrate-Inquiry by Magistrate to ascertain
    voluntary nature of confession-Rule of strict compliance with imperative
    requirements of Section 164-Non-compliance renders confession C
    unworthy ofcredence.

         Indian Penal Code, 1860-Section 302-Conviction based on
    confession made u/s 164 Cr.P.C.-Cryptic manner of holding enquiry to
    ascertain voluntary nature of confession-Confessional statement required

-   to be ruled out of consideration to determine guilt-Conviction not D
    sustainable.
        The appellant along with five others were tried for various offences
    in connection with the murder of the husband of Al. The appellant was
    convicted u/s 302 Indian Penal Code. The confessional statement of the
    appellant, recorded u/s 164 Cr.P.C. was the only piece of evidence on
    which the trial court relied upon and convicted the appellant. The High E
    Court upheld the conviction holding that the confessional statement,
    even though retracted at a later stage, was voluntary and true and held
    that the trial court had rightly relied upon the same. The submission
    made on behalf of the appellant that the confessional statement
    recorded by the· Magistrate was neither voluntary nor true and F
    trustworthy was repelled.

        This appeal by special leave has been filed against the order of the
    High Court upholding his conviction and sentence for the offence u/s
    302 IPC.

        Allowing the appeal, this Court                                        G
         HELD : 1.1. A confession, if voluntary and truthfully made is an
    "efficacious proof of guilt". 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 and trustworthy need be made.
                                                                 [176 C, E}    H
                                       171
    172                  SUPREME COURT REPORTS              (1994] SUPP. 6 S.C.R

A        1.2. From the plain language of Section 164 Cr.P.C. and the Rules
     and guidelines framed by the High Court regarding the recording of
     confessional statements of an accused under Section 164 Cr.P.C., is
     manifest that the said provisions emphasise an enquiry by the
     Magistrate to ascertain the voluntary nature of the confession. This
     enquiry appears to be the most significant and an important part of the
B    duty of the Magistrate recording the confessional statement of an
    accused under Section 164 Cr.P.C. 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
C    the provisions of S.164 Cr.P.C. 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. Before proceeding to record the
    confessional statement, a se11rching enquiry must be made from the
    ~ccused as to the custody from which he was produced and the
D   treatment he had been receiving in such custody in order to ensure that
    there is no scope for doubt of any sort of extraneous influence
    proceeding from a source interested in the prosecution still lurking in
    the mind of an accused. In case the magistrate discovers on such
    enquiry that there is gr:ound for such supposition he should give the
    accused sufficient time for reflection before he is asked to make his
E   statement and should assure himself tbat 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 in course of the trial, even if he
    contrives subsequently to ret.ract the confession. Besides administering
    the caution of warning specifically provided for in the first part of sub-
F   section (2) of Section 164 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 from such extraneous
    agents as the police or the like in case he declines to make a statement
G   and be given an assurance that even if he declined to make the
    confession, he shall not be remanded to police custody.
                                                      [176 F to H, 177 A, to DJ

        1.3. The Magistrate who is entrusted with the duty of recording
    confession of an accused coming from police custody or jail custody
H   must appreciate his function in that behalf as one of a judicial officer
                   SHIVAPPA v. STATE OF KARNATAKA                   173

and he must apply his judicial mind to ascertain and satisfy his A
conscience that the statement the accused makes is not on account of
any extraneous influence on him. That indeed is the essenfe of a
'voluntary' statement within the meaning of the provisions of Section
164 Cr.P.C. and the Rules framed by the High Court for the guidance
of the subordinate courts. Moreover, the Magistrate must not only be
satisfied as to tht9'oluntary character of the statement, he should also B
make and leave such material on the record in proof of the compliance
with the imperative requirements of the statutory provisions, as would
satisfy the court that sits in judgment in the case, that the confessional
statement was made by the accused voluntarily and the provisions are
strictly complied with. [177 E to F]                                       C

     1.4. In the instant case, the evidence on record does not establish
that the confessional statement of the appellant recorded under Section
164 was voluntary. The cryptic manner of holding the enquiry to
ascertain the voluntary nature of the confession has left much to be
desired and has detracted materially from the evidentiary value of the D
confessional statement. It would, thus, neither be prudent nor safe to
act upon the confessional statement of the appellant. Under these
circumstances, the confessional statement was required to be ruled out
of consideration to determine the guilt of the appellant. Both the trial
court and the High Court, which convicted the appellant only on the
basis of the so called confessional statement of the appellant fell in E
complete error in placing reliance upon that statement and convicting
the appellant on the basis thereof. Since, the confessional statement of
the appellant is the only piece of evidence relied upon by the
prosecution to connect the appellant with the crime, his conviction
cannot be sustained. [178 F to H]                                        F

    CRIMINAt APPELLATE JURISDICTION : Criminal Appeal No. 38
of 1992.

   From the Judgment and Order dated 20-21/9/90 of the Kamataka High
Court in Cr!. A. No. 837of1988.                                           G

    C.S. Srinivasa Rao for the Appellant.

    M. Veerappa for the Respondent.

    The Judgment of the Court was delivered by                            H
    174                  SUPREME COURT REPORTS              (1994) SUPP. 6 S.C.R

A       DR. ANAND, J. This appeal, by special leave, has been filed by
    Shivappa S/o Bundappa who was accused No. 2 in the trial court and
    appellant No. 2 in the High Court and is directed against the order of the
    High Court of Karnataka dated 21st September, 1990 upholding his
    conviction and sentence for the offence under Section 302 IPC. The
    appellant along with Smt. Sudha {Al) and four others were tried for various
B   offences in connection with the murder of Suresh Singhi on 4.12.1986 at
    about 3.00 a.m.

         According to the prosecution case Smt. Sudha (Al) was working as a
    Nurse in the primary health centre at Ullagaddi Khanapur. She was married
    to the deceased Suresh Singhi. The deceased used to live at Belgaum but
c   used to visit his wife, Al, at Ullagadi Khanapur, where she was working,
    quite often. The appellant Shivappa was working as a Health Guide at the
    primary health centre at Ullagaddi Khanapur. The husband of Sudha was
    addicted to drinking and there used to be frequent quarrels between the
    couple. In order to raise money for buying liquor, the deceased used to sell
    household articles, ifhe could not get cash from hi$ wife. The deceased also
D   suspected his wife to be having illicit relations with Ramchanda Hanamant
    Pujari (A4) who was working as a Basic Health Worker and with Dr. Ashok
    Madhukar (A6), who was working as a Medical Officer at the primary
    health centre Ullagaddi Khanapur at the relevant time. The deceased, after
    consuming liquor, shortly before the day of occurrence went to the house of
    A4 and accusing him of having illicit relations with his wife {Al) abused
E   him. He thereafter went to the house of A6 and abused him also in the
    presence of some of his patients accusing him that he was having illicit
    relations with his wife. On account of these accusations, the relations
    between the deceased, Al, A4 and A6 had become strained. These three
    accused alongwith the appellant, A3 and A5 used to meet and discuss the
    behaviour of the deceased. It is alleged that on 10.10.1985, the appellant
F   alongwith A4, A5 and A6 met in the Gotur Inspection Bungalow and
    hatched a conspiracy to do away with the deceased by causing his murder.
    It was planned that the murder would be committed during the night and
    the dead body would be thrown on the Poona-Bangalore road to give it the
    complexion of an accident. It was also decided that Al would thereafter file
    a complaint with the police saying that her husband had died in a motor
G   accident and when the· dead body would be brought for post-mortem
    examination before the Medical Officer, A6, he would certify that the death
    had been caused by an accident.·On 2.12.1985, the appellant alongwith Al,
    A4 and A5 worked out the plan for committing the murder of the deceased.
    On 3.12.1985 the deceased came to visit his wife. Al at Ullagadi,
    Khanapur. As per the plan in the early hours of the morning of 4.12.1985,
           SHIVAPPA v. STATE OF KARNATAKA [DR. ANAND, J.]                175

A3 went to the house of A 1 and asked her to come for a delivery case. A 1 A
alongwith her husband (deceased) and A3 went towards Henchinal and on
the way the appellant, alongwith A4 and A5 met them. A4 informed A 1 and
A3 that the patient had already delivered the baby and they could go back
to their house. Thereupon, the appellant alongwith Al, A3, A4, A5 and the
deceased proceeded towards Ullagaddi Khanapur. When they had reached
near the footpath leading from Henchinal cross to Ullagaddi Khanapur, the B
deceased was caught hold of by Al to A5. A rope was tied round the neck
of the deceased and his wife A 1 pulled the rope thereby causing the death
of the deceased. As per the original plan, the dead body was brought and
laid on Poona-Bangalore road. To lend authenticity to the story of an
accident, Al went to the house of PW2, located nearby, to bring water
telling him about the accident of her husband. Thereafter, she prepared the C
complaint Exh. P-52 and went to the police station at 7.15 a.m. and lodged
the report with PW18, the lncharge of the police station. An FIR in crime
case No. 221/85 for the offence punishable under Section 279/304 A IPC
and Section 89 of the Motor Vehicles Act was registered on the basis of the
said complaint. The dead body was sent for post-mortem examination to
A6. However, A6 informed PW18 that the case being a complicated one, D
the post-mortem examination may be got done through some other doctor.
Consequently, a requisition was made to the Medical Officer, Primary
Health Centre, Daddi to get the post-mortem of the dead body conducted.
The investigating officer, during the course of investigation recorded the.
statements of various witnesses. After the receipt of the post-mortem report,
which disclosed that the death had not been caused as a result of injuries E
received in any road accident, the viscera of the deceased was sent for
chemical examination to Bangalore. After the receipt of the post-mortem
report an offence under Section 302 IPC was registered. It was during
further investigation that Al volunteered to show the place where offence
had been committed and later on the appellant volunteered to show the F
place where the rope had been burnt. Both A 1 and the appellant also
volunteered to make confessional statements. The investigating officer
PW25 sent a request report to the Judicial Magistrate, 1st Class, Hukkeri to
record the confessional statements of A 1 and the appellant. The appellant
was produced before the Magistrate on 21.7.1986 and the Magistrate
adjourned the recording of the statement till 22. 7.1986, so that the appellant G
could reflect in the meantime. The appellant was remanded to the sub-jail
after the Magistrate had recorded preliminary statement of the appellant
after asking him various questions. The confessional statement of the
appellant was thereafter recorded by the Magistrate PWl 7 on 22. 7.1986.
Six weeks later appellant retracted the same by addressing a communication
Ex. D 1 to the Magistrate.                                                      H
     176                   SUPREME COURT REPORTS               [1994] SUPP. 6 S.C:::.R

A          The confessional statement of the appellant, recorded under Section
     164 Cr.P.C. by PW17 on 22;7.1986, was the only piece of evidence on
     which the trial court relied upon and convicted the appellant. In the High
     Court, the submission made on behalf of the appellant that the confessional
     statement recorded by PW! 7 was neither voluntary nor true and trustworthy
     was repelled. The High Court found that the confessional statement, even
B    though retracted at a later stage, was voluntary and true and held that the
     trial court had rightly relied upon the same. Consequently, the conviction
     and sentence of the appellant for the offence under Section 302 IPC was
     upheld. Hence this appeal.

           We have heard learned counsel for the parties.
c
          The only piece of evidence relied upon against the appellant is the
      confessional statement recorded by PW17 on 22.7.1986. A confession, if
      voluntary and truthfully made is an "efficacious proof of guilt." It is an
      important piece of evidence and therefore it would be necessary to examine
      whether or not the confession made by the appellant was voluntary, true
D     and trustworthy. The statutory provisions dealing with the recording of
     confessions and statements by the Metropolitan Magistrate and Judicial
     Magistrates are contained in Section 164 Cr.P.C. and the Rules framed by
     the High Court containing 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 and trustworthy
E    need be made.

         From the plain language of Section 164 Cr.P.C. and the Rules and
    guidelines framed by the High Court regarding the recording of
    confessional .statements of an accused under Section 164 Cr.P.C., is
    manifest that the said provisions emphasise an inquiry by the Magistrate to
F 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
  · Cr.P.C. 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
G be safe to act upon the same. Full and adequate compliance not merely in
    form but in essence with the provisions of Section 164 Cr.P.C. 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. Before proceeding to record
H the confessional statement, a searching enquiry must be made from the
•.
                SHIVAPPA v. STATE OF KARNATAKA [DR. ANAND, J.]               177

     accused as to the custody from which he was produced and the treatment he A
     had been receiving in such custody in order to ensure that there is no scope
     fo_r doubt of any sort of extraneous influence proceeding from a source
     interested in the prosecution still lurking in the mind of 3.Q accused. In case
     the magistrate discovers on such 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 B
     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 in course of the trial, even if
     he contrives subsequently to retract the confession. Besides administering
     the caution warning specifically provided for in the first part of sub-section
     (2) of Section 164 namely, that the accused is not bound to make a C
     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 from such extraneous agents as the police
     or the like in case he declines to make a statement and be given the
     assurance that even if he declined to make the confession, he shall not be D
     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 E
     judicial mJnd. to ascertain and satisfy his conscience that the statement the
     accused makes is not on account of any extraneous influence on him. That
     indeed is the essence of a 'voluntary' statement within the meaning of the
     provisions of Section 164 Cr.P.C. and the Rules framed by the High Court
     for the guidance of the subordinate courts. Moreover, the Magistrate must
     not only be satisfied as to the voluntary character of the statement, he F
      should also make and leave such material on the record in proof of the
      compliance with the imperative requirements of the statutory provisions, as
      would satisfy the court- that sits in judgment in the case, that the
      confessional statement was made by the accused voluntarily and the
      statutory provisions were strictly complied with.
                                                                                   G
          From a perusal of the evidence of PW17, Shri Shitappa, Addi. Munsif-
     Magistrate, we find that though he had administered the caution to the
     appellant that he was not bound to make a statement and that if he did make
     a statement that may be used against him as evidence but PWl 7 did not
     disclose to the appellant that he was a Magistrate and that the confession
     was being recorded by him in that capacity nor made any enquiry to find H
    178                   SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A   out whether he had been influenced by any one to make the confession.
    PW! 7 stated during his deposition in court "I have not stated to the accused
    that I am a Magistrate" - and further admitted "I have not asked the accused
    as to whether the police have induced them (Chithavani) to give the
    statement". The Magistrate PW! 7 also admitted that "at the time of
    recording the statement of the accused no police or police official were in
B   the open court. I cannot tell as to whether the police or police official were
    present in the vicinity of the court. " From the memorandum prepared by the
    Munsif Magistrate PWl 7 as also from his deposition recorded in court it is
    further revealed that the Magistrate did not lend any assurance to the
    appellant that he would not be sent back to the police custody in case he did
    not make the confessional statement. Circle Police Inspector Shivappa
c   Shanwar PW25 admitted that the sub-jail, the office of the Circle Police
    Inspector and the Police Station1 are situated in the same premises. No
    contemporaneous record has been placed on the record to show that the
    appellant had actually been kept in the sub jail, as ordered by the Magistrate
    on 21-7-1986 and that he was out of the zone of influence by the police
    keeping in view the location of the sub-jail and the police station. The
D
    prosecution did not lead any evidence to show that any jail authority
    actually produced the appellant on 22-7-1986 before the Magistrate. That
    apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate
    PWJ7 question the appellant as to why he wanted to make the confession or
    as to what had prompted him to make the confession. It appears to us quite
E   obvious that' the MunsifMagistrate PWl 7 did not make any serious attempt
    to ascertain the voluntary character of the confessional statement. The
    failure of the Magistrate to make a real endeavour to ascertain the voluntary
    character of the confession, impels us to hold that the evidence on the
    record does not establish that the confessional statement of the appellant
    recorded under Section 164 Cr.P.C. was voluntary. The cryptic manner of
F   holding the enquiry to ascertain the voluntary nature of the confession has
    left much to be desired and has detracted materially from the evidentiary
    value of the confessional statement. It would, thus, neither be prudent nor
    safe to act upon the confessional statement of the appellant. Under these
    circumstances, the confessional statement was required to be ruled out of
    consideration to determine the guilt of the appellant. Both the trial court and
G   the High Court, which convicted the appellant only on the basis of the so
    called confessional statement of the appellant, fell in complete error in
    placing reliance upon that statement and convicting the appellant on the
    basis thereof. Since, the confessional statement of the appellant is the only
    piece of evidence relied upon by the prosecution to connect the appellant
    with the crime, his conviction cannot be sustained.
H
          SHIVAPPA v. STATE OF KARNATAKA [DR. ANAND, J.]           179

     This appeal, consequently, succeeds and is allowed. The conviction A
and sentence of the appellant is set aside. The appellant is directed to be
released from custody forthwith unless required in any other case.

A.G.                                                   Appeal allowed.