VALI ISA MAHMED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These are two criminal appeals. Cri. Appeal No. 191/61 is by the original accused No. 1 and Criminal Appeal No. 197/1961 is by the original accused No. 2 in Sessions Case No. 30 of 1960 decided by the learned Sessions Judge of Broach. That case was against four accused persons and the two present appellants who where accused Nos. 1 and 2 were convicted under section 302 read with sec. 34 Indian Penal Code for having committed the murder of one Shantilal Bhagwandas of Simartha at about 5-30 P. M. on 19-3-60. Accused Nos. 3 and 4 were acquitted by the learned Sessions Judge.

(2.) We shall first consider the confession of accused No. 2 He was arrested on 5-4-60 at 6 A. M. by one Pratapsing P. S. I. of Jambusar in the village of Sindhav and he was sent to the P. S. I. at Amod at 10 A.M. At the time of his arrest a wrist watch was found on him. He was taken on remand till 9-4-60. On 9-4-60 he was sent to the Judicial Magistrate and on that day the P. S. I. also wrote a letter to the Judicial Magistrate and also to the Taluka Executive Magistrate requesting that a confessional statement of accused No. 2 should be taken. It appears that the Taluka Executive Magistrate wanted accused No. 2 to be produced on 13 and not earlier. At 12 noon on 13-4-60 accused No. 2 was produced before the Taluka Executive Magistrate Mr. Pandya P.W. 22. The Magistrate has deposed that he asked the police guard to go away and put the accused in the custody of his peon Shamsher Gulab. The Magistrate then told the accused that he was not in police custody and that if he wanted to say anything of his own accord he should say. The Magistrate also explained to the accused at that time that whatever he would tell him would be used as evidence against him at the trial. The Magistrate examined his body but did not find any mark of injury on him. The Magistrate then gave him time till 4 P. M to cool down. The Magistrate also asked accused No. 2 whether he was given any threat or promise by the police or was in any way compelled to confess. But the accused replied that there was no such thing and that he had come to confess voluntarily. The accused was called at 4 P. M. and before that the Magistrate noted down all the questions and answers asked to him in the confession. At 4 P. M. the Magistrate again explained to the accused that he was not bound to make a confession and that if he made any it will be used as evidence against him. The accused then replied that he wanted to confess voluntarily. Then the magistrate put certain questions regarding the confession recorded his replies and read the confession to him. The accused admitted the contents of the confession and the Magistrate took the signature of the accused on the confession.

(3.) At the Sessions trial it was the case of accused No. 2 that he had been tortured by being made to sleep on an ice slab that promise of payment of Rs. 5000.00 was made to him and it was also his case that in fact he made no statement before the Taluka Magistrate. Section 24 of the Indian evidence Act requires the proof of inducement threat or promise of the type as mentioned in that section. In cases like this it is easy for an accused person to make allegations against the police and at the same time it is difficult for an accused person to prove the allegations made by him even if they are true. But in this particular case it must be observed that the accused was in police custody for about four days and in these circumstances it would not be unreasonable to hold that a promise may have been made to the accused during the time he was in police custody. In such cases the mere fact that a promise bad been made to an accused person when he was in police custody does not technically make the confession involuntary. In such a case we have to look at the provisions of section 28 of the evidence Act which provides that if such a confession as is referred to in section 24 is made after the impression caused by any inducement threat or promise has in the opinion of the Court been fully removed it is relevant. Having this section in view various High Courts have issued criminal circulars as to the manner of recording confessions and as to the precautions to be taken before recording the confessions. The important instruction given is that time for reflection of at least 24 hours should be given. In Sarwan Singh v. State of Punjab A.I.R. 1957 Supreme Court 637 it has been observed by their Lordships that speaking generally at least 24 hours time for reflection should be given and that in some cases even more time may be necessary But the question whether a confession is voluntary or not is always a question of fact and there is no rule of law that if a certain period is not given for reflection that itself would be sufficient to rule out the confession. But at the same time all the factors and all the circumstances of the case including the important factor of the time given for reflection must be considered before deciding whether the Court is satisfied that in its opinion the impression caused by any inducement threat or promise has been fully removed as provided in sec. 28. It is therefore necessary to first see whether the Magistrate who recorded the confession has followed the necessary directions and whether as a result of what the learned Magistrate has done the Court can see that the Impression if any caused by any inducement threat or promise has been fully removed. In the instant case we find it difficult to say that the requirements of section 28 of the Evidence Act have been satisfied having regard to the following circumstances:-