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Criminal Appeal No. 109 of 1964, decided on 5th December 1968.
Ss. 164 & 533‑Confession, recording of‑Violation of mandatory provisions of S. 164‑Not curable under S. 533.
Mst. Bakhat Bano v. The Crown P L D 1950 Lah. 68 ref.
S. 164(3)-- Confession, recording of Satisfaction of Magistrate whether confession was voluntary‑Depends upon nature of answers given by accused and questions put to him by Magistrate‑Court before which confession sought to be used is to decide about its voluntari ness in light of questions put by Magistrate and answers given by accused‑Questioning accused before recording confession‑Object of‑Real endeavour to find out voluntariness‑Evidence Act (I of 1872), S. 24‑[Juma and others v. The Crown P L D 1954 Lah. 783 dissented from partly].
The satisfaction of the Magistrate as to the voluntariness of the confession must be based on the answers given by the accused to the questions put to him. Subsection (3) of section 3, Cr. P. C. does not leave it to the Magistrate to be satisfied about the voluntary nature of the confessions without reference to the question put by him to the accused and the answers given by the latter. A Magistrate must make real and substantial inquiries as to the voluntariness of the confession and where he is found not to have made such inquiries the confession is inadmissible in evidence.
The satisfaction of the Magistrate is, of course, important, but it is for the Court before which a confession is sought to be used to decide whether the confession was actually voluntary. The Magistrate's satisfaction will have to be examined in the light of the questions put by him to the accused and the answers given by the latter. Those questions must be put in pursuance of a real endeavour to discover whether the confession was voluntary or whether it was caused by torture or tutoring or inducement, threat or promise proceeding from a person in authority.
The whole purpose of section 164(3) is to ensure voluntari ness of the confession apart from and irrespective of its being hit by section 24 of the Evidence Act. It is evident from the wording of subsection (3) that the Magistrate should suo motu be satisfied by questioning the accused as to the voluntariness of the confession. In fact, the question of the accused by the Magistrate forms the very basis of the satisfaction. The importance of questioning in pursuance of a real endeavour to find out the voluntariness or otherwise of the confession can hardly be over emphasised.
Juma and others v. The Crown P L D 1954 Lah. 783 dissented from partly.
Ragho Laya and others v. Emperor 18 Cr. L J 721 ; Ram Babu Jaday and others v. Emperor 39 Cr. L J 302 ; Crown v. Labaur Magh 9 D L R 46 and Emperor v. Panchkari Dutt 29 C W N 300 rel.
Dewan Naimul Huq for Appellants.
Jahurol Hoq for the State.
‑The six appellants before us, namely, Nurul Haque, Atikur Rahman, Rustom Ali, Nasiruddin, Taslimuddin and Md. Okiluddin were tried along with 4 other accused by the Sessions Judge of Dinajpur. The trial was held with the aid of four assessors. In accordance with the majority opinion of the assessors the learned Judge convicted the appellants under section 302 of the Pakistan Penal Code and sentenced each of them to transportation for life.
2. The prosecution case, as was sought to be made out against the appellants for the gruesome murder, with which they were charged, may be briefly stated as follows : On Monday, the 8th of Baisakh, 1370 B. S. corresponding to 22nd April 1963, at about 4 or 5 p. m. deceased Abdus Sattar Chowdhury left for Parbatipur on a motor cycle for purchasing bricks. At about 11 p.m. on the same date he was returning home from Parbatipur and while he came near the Abdulpur Bridge on the District Council Road the accused persons who were lying in ambush near the bridge armed with dao and chhora, etc., suddenly attacked and slaughtered him. Deceased Sattar Chowdhury raised alarm saying Bapre' and some of the P. Ws. while proceeding to the place of occurrence were obstructed by some of the accused persons from going there and some of the P. Ws. saw some of the accused persons running away from the side of the bridge. The accused were also seen gossipping together shortly before the occurrence. The local P. Ws. on reaching the place of occurrence found Abdus Sattar Chowdhury lying dead with his throat cut and a number of cut injuries on his person. They sent information to his house whereupon the complainant Abul Hossain Chowdhury along with some inmates of his house and others came to the spot and saw the condition of the deceased. The motor cycle, two bamboo posts and a butt of a chhora were found there. The wristwatch which was in the hand of the deceased was not found with the dead body.
3. Next morning P. W. Abul Hossain went to Chirirbandar Police Station and lodged F. I. R. Police came and held inquest on the dead body of Sattar Chowdhury on the identification of the complainant and forwarded it to the Dinajpur Morgue for post mortem examination through the two Constables.
4. Sub‑Inspector Md. Abdul Haque, Officer‑in‑Charge of Chirirbandar Police Station took up investigation of the case, seized alamats and prepared a sketch map with an index. He also seized one diary maintained by Sattar Chowdhury from the complainant on production by the latter. The writ watch of the deceased was recovered from the house of accused Okiluddin on search. He arrested the accused persons and forwarded them to Court for recording their confessional statements. The Sub‑divisional Officer, Dinajpur, Mr. K. A. Islam, recorded the confessions. Sub‑Inspector Abdul Haque examined witnesses and thereafter Circle Inspector of Police Md. Abdur Rashid took up investigation of the case from him. He seized another diary maintained by the deceased and after completing the investigation submitted charge‑sheet against 11 persons. A competent Magistrate after holding preliminary inquiry committed the 10 accused, who faced the trial, to the Court of Sessions while he discharged one of the accused.
5. The defence did not adduce any evidence. From the trend of cross‑examination of the P. Ws. the defence in the case appears to be that deceased Abdus Sattar Chowdhury had no enmity with the accused persons, that he was involved in many criminal cases and was convicted and sentenced to R. I. for 7 years in a murder case and that P. W. 1 Abul Hossain Chowdhury had enmity with the accused persons and out of that enmity he falsely implicated them in this case.
6. In support of its case, the prosecution examined 18 witnesses of whom P. W. 10 is the Doctor who carried out the post‑mortem examination ; P. W. 11 is the Sub‑Divisional Magis trate, Dinajpur, who recorded the confessions ; P. W. 14 is the Constable who attended the inquest held by Assistant Sub- Inspector Abdul Majid and escorted the dead body of Sattar Chowdhury to the Morgue ; P. W. 15 is the Officer‑in‑Charge of Parbatipur Police Station whom the deceased met on the date of occurrence and who has testified that the deceased had the wrist watch, Exh. 11, on his hand ; P. W. 16 is Assistant Sub- Inspector Abdul Halim Sikdar who recorded the First Informa tion Report and held inquest on the dead body of the deceased ; P. W. 17 is Sub‑Inspector Md. Abdul Haque who was Officer‑in- Charge, Chirirbandar Police Station at the relevant time in 1963 and who investigated the case, and P. W. 18 is the Circle Inspector of Police Md. Abdur Rashid who seized the diary, Exh. 3, from the complainant and after examining the witnesses and completing the investigation submitted charge‑sheet against the accused person. P. W. 18 also seized certain alamats, namely, the hurricane, Exh. VI, as produced by Azimuddin, the torch light, Exh. VIII, as produced by Ismail, and another torch‑light, Exh. VII, as produced by Rahimuddin under a seizure list, Exh. 14.
7. There is no witness in this case who claims to have seen the actual occurrence but some of the witnesses claim to have seen some of the accused persons shortly before or soon after the occurrence. We shall briefly give a synopsis of their evidence here.
Discussion of evidence omitted.
8. On the question, however, as to whether the deceased came by the fatal injury at the hands of the appellants we might observe at the very outset that there is no direct evidence, for there is no eye‑witness to the murder. The entire evidence against the appellants consist of their individual confession and certain circumstances. As already mentioned all these confessions were recorded by P. W. 11 Mr. K. A. Islam, the then Sub‑Divisional Officer. Dinajpur Sadar. He recorded the confessional statements of appellant on 5th May 1963, and those of the other five on 30th June 1963. The confessions are almost in the same language. One of them may be quoted here as a sample.
9. Confessional statement of appellant Taslimuddin runs as follows:
"About a month before the occurrence Jabbar Choudhury made us swear by Quran in the house of Jahim for committing murder of Sattar. The reason was that Sattar insulted Jabbar. Jabbar wanted to pay us ten thousand rupees. In the night of the 8th Baisakh, I, Jahim, Jabbar Chowdhury, Atikar, Nural, Jari, Rustam, Ghutu, Okil and Nasir got together in Ghutu's house. At about 10 o'clock in the night we remained waiting under a bridge by the side of the District Council Road. We attacked Sattar with lathis, knives when he came by his motor cycle. We over‑powered him when he ran about 30/40 cubits. Jabbar held Sattar by pressing his head down and Okil butchered Sattar with a knife and took away the watch of Sattar."
The confession of appellant Okiluddin Pradhan is, however, in a different language and at variance with the confession of the other accused‑appellants. He has stated in his confessions that he beat the victim with a lathi and some others injured him with knives. According to his confession Jahim, Atik, Rustom and Ghutu slaughtered Abdus Sattar Chowdhury.
10. The question of admissibility of the confessions has been raised before us and it has been urged by Mr. Dewan Naimul Huq appearing on behalf of the appellants that the confessions are neither voluntary nor correct. Elaborating his argument on this point he has submitted that the learned Magistrate who recorded the confessions violated the mandatory provisions of section 164(3) of the Criminal Procedure Code inasmuch as he did not put the necessary questions to the appellants in order to find out whether the confessions were voluntary or whether they were the result of tutoring or Police oppression. Subsection (3) of section 164 of the Code of Criminal Procedure, which governs tae matter, in the following terms‑
"164 (3) A Magistrate shall, before recording any such confession, explain to the persons making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect‑
I have explained to (name) that he is not bound to make a confession and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.'
(Sd.) A. B. Magistrate."
11. Thus, it is a mandatory provision of law that it must be explained to the accused by the Magistrate before recording the confession that he is not bound to make a confession and that if he makes a confession it may be used as evidence against him, and that no Magistrate should record any confession unless, upon putting questions to the accused, he has reason to believe that the confession was made voluntarily. The satisfaction of the Magistrate as to the voluntariness of the confession must be based on the answers given by the accused to the questions put to him. Subsection (3) does not leave it to the Magistrate to be satisfied about the voluntary nature of the confessions without reference to the question put by him to the accused and the answers given by the latter. A Magistrate must make real and substantial inquiries as to the voluntariness of the confession and where he is found not to have made such inquiries the confession is inadmissible in evidence. It is essential that the Magistrate must put question to the accused with a view to finding out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by somebody or whether it has been caused by any inducement, threat or promise. The questioning by the Magistrate and the answers given by the accused will determine the real character of a confession. Finally, it is for the Court before which the confession is sought to be used to decide whether it was voluntary.
12. The above proposition is supported by various judicial decisions. In the case of Ragho Laya and others v. Emperor (18 Cr. L J 721), the Patna High Court held that no Magistrate should record any confession unless upon questioning the person making it he is satisfied or has reason to believe that it is made voluntarily. The Magistrate should ask some such question as to why he is making the confession ; is he sorry for his crime or has somebody told him that he will gain something by his confession. The Magis trate should refuse to record his confession until he has received satisfactory answers to his questions. The same High Court held in the case of Ram Babu Jady and others v. Emperor (39 Cr. L J 302), that it is the duty of the Magistrate to satisfy himself while recording a confession that it is not the result of any undue influ ence. Where he fails to put the questions and the confession is retracted before the Committing Magistrate as having been tutored it cannot be relied upon by the Court. It may be observed that in this case the confessions have been retracted and it has been alleged by the appellants that they were obtained by Police by beating.
13. In the case of Mst. Bakhat Bano v. The Crown (P L D 1950 Lah. 68) their Lordships of the Lahore High Court held that a confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial enquiries before recording it. It was further held in that case that irregularities in recording a confession can be cured under section 533, Cr. P. C., but it is only when the Court is satisfied that the confession had been made duly though it was not recorded duly. Thus only formal defect in recording the confession is cured under section 533, Cr. P. C. Any defect arising out of violation of any mandatory provision of law is not curable under the said section.
14. In the case of the Crown v. Labau Magh (9 D L R 46), Rahman, J. while delivering judgment of a Division Bench of this Court observed as follows;
"Finding himself faced with this difficult situation, Mr. Chowdhury argued that unless a confession is shown to be absolutely voluntary, it is not admissible in evidence and, in the case before us, he argued, there being no such satisfactory proof the confession cannot be admitted in evidence at all. In support of this contention he has placed great reliance upon the case of Emperor v. Panchkari Dutt 29 C W N 300, where Mukerji, J. expressed, inter alia, the view that in order to ensure the voluntariness of a confession, the questioning of the accused before he makes the confession forms a factor, the importance of which can seldom be overestimated. It has been enjoined in decisions of which the number is legion that the Magistrate must question the accused with a view to dis covering whether the prisoner confesses voluntarily, and this questioning must be in pursuance of a real endeavour to find out the object of it, the requirement not being satisfied by putting a few formal questions.' He then went on to examine the questions put by the Magistrate in that case, and came to the view that the questions that had been put were useless for the purpose and furnished no sufficient data for coming to the conclusion that the statement was voluntary. Indeed his Lordship observed that the Magistrate had in that case not only questioned him to find out whether he was making the statement voluntarily, but on the contrary, had directed him to make the statement voluntarily.
We have no reason to disagree with the propositions of law adumbrated by Mukherji, J. but on examination of the question put to the accused by the Magistrate in the present case to test the voluntariness of the confessional statement, we find them to be materially different from those with which Mukherji, J. had to deal as will appear from the questions and answers set out hereunder:
Q.‑Will you really confess
A.‑Yes, it is a fact that I shall confess. I could not stand the sight, so I murdered. What is the use denying confession
Q.‑Did anybody belabour you
A.‑I have no enemy. Nobody has beaten me. It is a fact that I murdered, as I could not tolerate.
Q.‑You will not say anything other than truth
A.‑I shall speak the truth.
We are satisfied from the above that the questions put really endeavoured to find out if the accused was voluntarily making the confession, and the answers given leave no room for doubt that the accused was voluntarily making the confession without any inducement or threat from any quarter."
15. In the present case the learned Magistrate signed the printed certificate in para. 5 of the form prescribed for recording confession. It runs thus:
"I now carefully explain afresh to the accused‑
(1) that I am not an officer of Police but a Magistrate ; (2) that he is not bound to make a confession ;
(3) that if he does make a confession it may be used in evidence against him ;
(4) that he should not say anything because others have told him to say it but is at liberty to say whatever he really desires to say ;
(5) that he should say nothing which is untrue ; and I sign my name hereunder in token that these matters have been fully explained and that he appears to me to understand them." It is thus clear that the questions put in the case reported in 9 D L R 46 are not materially different from what appear in paragraph 5 of the printed form. But the actual questions put by the Magistrate under column 6 of the form are the following
"Q.‑You know that I am not a Police Officer but a Magistrate.
Q.‑You know that you are not bound to make any confession and that your confession may be used against you."
To both the questions each of the appellants replied in the affirmative.
P. W. 11 Mr. K. A. Islam has stated in his cross‑examination I have mentioned all the questions that I put to the accused in the form'.
Thus what has been stated in paragraph 5 is inconsistent with the questions appearing under paragraph 6. It is absolutely clear from the aforesaid statement of the Magistrate himself that he put no other questions to the accused except those which have been recorded under para. 6. It amounts to this that the Magistrate did not tell the appellants that they should not say anything because others told them to say it and that they were at liberty to say whatever they really desired to say and that they should say nothing which is untrue. In the 9 D L R 46 case the accused was asked whether he would really confess and whether any body belaboured him and he was further cautioned in the form of a question that he should not say anything other than truth. The answers given by the accused in that case manifestly showed that the accused was in a state of emotion and he wanted to make a clean breast of the murder he had committed. The instant case is altogether different. It is perfectly clear from a careful reading of the confessions along with the evidence of Mr. K. A. Islam that there was no real endeavour to find out why the appellants wanted to make the confessions.
16. Another decision is relevant to the facts of the present case and that is the case of Juma and others v. The Crown (P L D 1954 Lah. 783).
In that case Shabir Ahmed, J. who delivered judgment of the Division Bench in the Lahore High Court observed:
"The question whether or not a Magistrate, who records a confession under section 164 of the Code of Criminal Procedure, was satisfied that the confession was voluntarily made is one which will have generally to be decided on the statement of the Magistrate because it relates to the state of his mind at the particular time."
17. After quoting subsection (3) of section 164, Cr. P. C the learned Judge proceeded to observe further as follows:
"Though this subsection makes it incumbent that the person brought before a Magistrate during the course of investigation to make a confession should be told that he was not bound to mate a confession, and if he does so, it may be used as evidence against him, yet it leaves to the Magistrate to ask such questions as he considers necessary to satisfy himself that the confession was being made voluntarily. The mere fact that the questions prescribed by this Court in Correction Slip No. 73, dated the 14th January 1953 were not asked could not by itself be sufficient ground for holding that the Magistrate who recorded the confession, was not satisfied that the confession, was voluntarily made as the confession, will be irrelevant under section 24 of the Evidence Act only if it appears to the Court called, upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority. The mere fact that the questions mentioned in the instructions issued by this Court are not asked cannot be held to prove that the confession was the result of inducement, threat or promise, though the Magistrate who fails to ask those questions will be remiss in the discharge of his duties. It is for the Court, before which a confession is sought to be used, to decide whether or not section 24 hits the confession and if a Court is satisfied that in spite of the instruction, as distinguished from mandatory provisions of law, not having been satisfied the confession was voluntary, non‑compliance with the instruction contained in the printed form prescribed by this Court would not be sufficient ground for holding that the confession was irrelevant or inadmissible."
18. The satisfaction of the Magistrate as to the voluntary nature of the confession no doubt relates to the state of his mind at the time the confessional statement is recorded. The Magistrate might have been in a particular state of mind at the time of recording the confession and might have been satisfied that the confession was voluntarily made, but when he would be in a different state of mind at some other time he would perhaps not be satisfied about the voluntary nature of the confession. The satisfaction of the Magistrate is, of course, important but it is for the Court before which a confession is sought to be used to decide whether the confession was actually voluntary. The Magistrate's satisfaction will have to be examined in the light of the questions put by him to the accused and the answers given by the latter. Those questions must be put in pursuance of a real endeavour to discover whether the confession was voluntary or whether it was caused by torture or tutoring or inducement, threat or promise proceeding from a person in authority. With great respect, we are unable to agree with the learned Judge that a confession will be irrelevant under section 24 of the Evidence Act only if it appears to the Court called upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority regard being had to the fact that the whole purpose of section 164 (3) is to ensure voluntariness of the confession apart from and irrespective of its being hit by section 24 of the Evidence Act. It is evident from the wording of subsection (3) that the Magistrate should suo motu be satisfied by questioning the accused as to the voluntariness of the confession. In fact, the question of the accused by the Magistrate forms the very basis of the satisfaction. The importance of questioning in pursuance, of a real endeavour to find out the voluntariness or otherwise of the confession can hardly be over‑emphasised.
19. The Magistrate who recorded the confession having come to the witness box and deposing as P. W. 11 has, no doubt, said, that he believed that the confession was voluntarily made. Whether there was a sound basis for this belief is a matter for examination by the Court which deals with the confession. We have already found that the mandatory provisions of section 164(3) of the Criminal Procedure Code have not been complied with in this case. For that reason the confessions are inadmissible in evidence.
20. In view of the above findings, it is hardly necessary to go into the questions of correctness of the confessions. Yet the question may be examined briefly ; appellant Okiluddin has stated in his confession that he assaulted the deceased Sattar Chowdhury with a lathi and accused Jahim, Atikur, Rustom and Ghutu slaughtered him. But the other five appellants stated in their confessional statements that Jabbar caught the head of Sattar Chowdhury and Okiluddin slaughtered him. The story that Jabbar Chowdhury was at the root of this murder and that he participated in the act of killing of the deceased has not been given up. In the circumstances, we are unable to hold that the confessions are true.
21. Thus in any view of the case, convictions of the appellants on the basis of the confessions cannot be maintained.
22. The evidence as regards any of the circumstances is unworthy of credit. At any rate, the prosecution has failed to prove the facts constituting the circumstances alleged by them beyond reasonable doubt. It may be observed in this connection that none of these circumstances is such an incriminating fact as may be considered incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than the guilt of the accused persons.
23. It was held in 8 C W N 278 that it is a fundamental principle, and one of universal application in cases on circumstantial evidence, that in order to justify any inference of guilt the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than that of his guilt. This is the principle of law which has been consistently followed in all subsequent judicial decisions.
24. After giving careful thought to the entire evidence and circumstances of the case and the points of law involved in it, which we have considered above, we find that the prosecution has failed to bring home the charge against the appellants.
The result, therefore, is that the appeal be allowed, the conviction of the appellants and the sentence passed on each of them are hereby set aside. It is directed that the appellants be set at liberty forthwith, if not wanted in any other connection.
‑I agree.
Appeal allowed.
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