Judgment:
1. The appellant was put on trial along with 9 accused persons for committing murder of one Umesh Sharan, Chief Executive-cum-Personnel and Administrative Officer of Menally Bharat Industries, Kumardubi in furtherance of their common intention after hatching conspiracy and also for causing disappearance of the evidence of the murder in order to screen themselves from the legal punishment.
2. The trial court having found the appellant guilty for the offences under Sections 302/34/201 and also under Section 120(B) of the Indian Penal Code sentenced him to undergo imprisonment for life for each of the offences under Sections 302/34 and 120(B) of the Indian Penal Code and further to undergo rigorous Imprisonment for a period of 5 years under Section 201 of the Indian Penal Code. Both the sentences were ordered to be run concurrently.
3. The case of the prosecution is that on 23.3.1986 at about 7.30 A.M. the deceased Umesh Sharan, Chief Executive-cum-Personnel and Administrative Officer of Menally Bharat Industries, Kumardubi had come to Rekhrai Automobile Service Station for servicing of his car. When the car was put for servicing, Umesh Sharan sat in the office of the said service station. Meanwhile, Nirmal Singh (P.W.2) son of the owner of the Petrol Pump and other employees of the service station when were engaged in providing fuel to customers, they heard four shots of firing, upon which Nirmal Singh saw 3-4 persons coming out of the office of the Petrol Pump. All of them fled away. Thereupon Nirmal Singh saw Umesh Sharan under the pool of blood and, therefore, he took Umesh Sharan to Das Nursing Home by a car. Meanwhile, Gadadhar Tanti (P.W.22) the then Officer-in-Charge of Chirkunda Police Station on getting information that some body has shot at Umesh Sharan in the Petrol Pump, he made entry in the Station Diary and rushed to Petrol Pump but there he could know that Umesh Sharan has been shifted to Das Nursing Home at Sheolibari, Chirkunda and hence, he came over there and found the injured being provided with first aid. But when his condition got deteriorated, he was sent to Sub-divisional Hospital, Asansol and one A.S.I Ramdeo Giri was asked to accompany him. After giving such instruction to A.S.I, Gadadhar Tanti came back to service station and recorded the Fardbeyan (Ext.3) of Nirmal Singh (P.W.2), upon which formal first information report (Ext.8) was registered. The said Gadadhar Tanti (P.W.22) himself took up the investigation of the case. In course of investigation, he seized broken spectacle and also fired cartridge under seizure list (Ext.4). Later on, he received inquest report (Ext.5), dead body challan (Ext.6) and even photo copy of the post mortem report (Ext.7) from Sub-divisional Hospital, Asansol. According to post mortem report conducted by Dr. R.R. Mukherjee (P.W.23) firearms injuries were found over the chest, abdomen and thigh. Some of the injuries were found charred and the Doctor had recovered cartridges from the aforesaid injuries.
4. In course of investigation, the Investigating Officer on 29.3.1986 arrested the appellant, who confessed his guilt before him. Therefore, the appellant was forwarded before the Magistrate on 30.3.1986 for recording his confession. Accordingly, Sri R.R.P. Deo (P.W.1) the then Judicial Magistrate, Dhanbad recorded his confession (Ext.1) under Section 164 of the Code of Criminal Procedure on 31.3.1986.
5. On completion of investigation, police submitted charge sheet against the appellant and others, upon which cognizance of the offence was taken and in due course when the case was committed to the court of sessions, charges were framed to which the appellant pleaded not guilty and claimed to be tried.
6. The prosecution in attempt to prove the charges examined as many as 24 witnesses but most of the witnesses either have been declared hostile or were tendered.
7. The trial court finding the case to be proved as that of homicide did hold the appellant guilty on the basis of only confession made by this appellant under Section 164 of the Code of Criminal Procedure whereas all the other accused persons were acquitted.
8. Being aggrieved with the order of conviction and sentence, this appeal has been preferred.
9. Learned Counsel appearing for the appellant submits that there has been absolutely no evidence whatsoever showing involvement of the appellant in the alleged offence in any manner except confession which has been retracted and that too, it is exculpatory in nature, still the trial court recorded the order of conviction, though such confession was never recorded as per the statutory requirement as enshrined under Section 164(4) of the Code of Criminal Procedure, that is to say, without being satisfied that the appellant had made statement voluntarily without any fear. Therefore, the impugned order of conviction and sentence passed by the trial court is fit to be set aside.
10. Before proceeding further in the matter, it would be pertinent to take notice of the statement (Ext.1) made by this appellant under Section 164 of the Code of Criminal Procedure wherein it has been stated that while he was sleeping in the night of 22.3.1986 along with others, he was made to wake up by one Ajay by saying that one Parmanand Singh is calling them but he did not go to Parmanand Singh. On the next day, i.e, 23.3.1986 in the morning, Parmanand Singh came and asked him to come along with him as they have to beat one person by fists and slaps but he refused to accompany him, then Parmanand Singh said that it is to be done at the instance of Suresh Jha. Thereafter Parmanand Singh brought him near the Telephone Exchange and asked to go to the Petrol Pump where he will find Pato Roy and when he came near the Petrol Pump, he saw 4 persons entering into the cabin of the Petrol Pump. Meanwhile, he was also asked to join and when he came inside the cabin he suddenly noticed that all the accused persons took out their revolvers and fired shots upon a person to whom he was not knowing and as such, he became perturbed as he was not knowing that they would kill a person. Therefore, he fled away along with other accused persons. Thereafter he came near a temple from where he saw all the accused persons giving their weapons to one Manoj Mishra with whom he watched a cinema on that day and then he took Manoj Mishra on his bye-cycle to the residence of one D.N. Jha to whom Manoj Mishra gave revolvers and cartridges to keep with. Thereafter, on being asked, Manoj Mishra disclosed to him that it was Suresh Jha, who got Umesh Sharan murdered.
11. Admittedly the confessional statement (Ext.1) does not contain the memorandum at the foot of statement as required in terms of Section 164(4) of the Code of Criminal Procedure, as such Ext.1 never discloses that before recording confession, the Magistrate ever explained him that he is not bound to make confession and that, if he does so, it may be used as evidence against him. Furthermore, nothing appears to be there to show that the Magistrate before recording confession satisfied himself by putting question that such confession is being made voluntarily. In spite of non-observance of the statutory requirement, the trial court by putting reliance did find the appellant guilty by holding that absence of recording of the memorandum of appellant being warned before recording statement is mere an irregularity and not an illegality which is curable provided the Magistrate concerned could satisfactorily explain that such warning had actually been given. Since the Magistrate (P.W.1) in his evidence has testified that before recording the statement, warning was given, the trial court did not find confessional statement (Ext.1) being vitiated with any illegality. We failed to convince ourselves as to under what circumstances it was held that absence of certificate as required has satisfactorily been explained by P.W.1 when such warning had never been recorded anywhere, neither it is there in the Ext.1, as stated above, nor the same has been recorded in the order sheet of the date when the confessional statement was recorded which P.W.1 himself admits in his evidence. We do further find that the statement was recorded on 31.3.1986 whereas P.W.1 was examined in December, 1987, Therefore, it Is hard to believe that the learned Magistrate would be able to recollect all those acts relating to recording of confession which took place more than a year and half before. Therefore, version of P.W.1 that before recording the confession of the appellant warning, as stipulated in terms of Section 164 of the Code of Criminal Procedure, was given to the appellant and that Magistrate before recording confession satisfied himself that the appellant is ready to confess his guilt voluntarily does not appear to be convincing at all.
12. It be stated here that the statutory provisions dealing with the recording of confessions and statements by the Metropolitan Magistrate/Judicial Magistrates are contained in Section 164 of the Code of Criminal Procedure prescribing certain guidelines for recording of confessions. Unless the Court is satisfied that the confession is voluntary in nature, it cannot be acted upon and no further enquiry as to whether it is true or trustworthy need to be made.
13. In this regard we may refer to a decision in the case of Shivappa v. State of Karnataka : AIR1995SC980 wherein it has been held hereunder:
From the plain language of Section 164 of the Code of Criminal Procedure and the Rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 of the Code of Criminal Procedure is manifest that the said provisions emphasize an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 of the Code of Criminal Procedure. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 of the Code of Criminal Procedure and the Rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrates jurisdiction to record the confession and renders the confession unworthy of credence.
14. In view of the facts and circumstances as discussed above, the instant confession rather retracted confession recorded without being satisfied that it was given voluntarily, it is certainly unworthy of credence. Therefore, learned Sessions Judge committed illegality in placing his reliance on the said confession, though the said confession as we have held earlier is not at all to be acted upon, still we may note that the appellant never came to the place of occurrence in furtherance of the common intention to commit murder of the deceased, rather as per the confession made by the appellant, he was asked to come to a place to simply assault a person. Moreover, from his confession it does appear that he even was not knowing as to who was to be assaulted but when he came to the place of occurrence, he was taken by surprise that other accused persons committed murder and, therefore, under these circumstances, the appellant cannot be said to have hatched conspiracy along with others or to have shared common intention in commission of the murder of the deceased and that he did something to cause any evidence of the commission of the murder to disappear.
15. In this view of the matter, it was wholly unwarranted on the part of the trial court to convict the appellant and hence, the order of conviction and sentence recorded against the appellant is hereby set aside. Consequently the appellant is acquitted of the charges levelled against him and is discharged from the liability of the bail bonds.
16. In the result, this appeal is allowed.