# Naviullah @ Magroo v. The State of U.P

- **Citation:** (2013) 2 ILRA 957
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-04
- **Case number:** Criminal Appeal No. 853 of 2005
- **Bench:** Imtiyaz Murtaza
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naviullah-magroo-v-the-state-of-u-p-42654
- **Pages:** 20

## Headnote

section
302,
201,
376
I.P.C.-
conviction
of
appellant
based
upon
confession
made
before
magistrate-
without certifying about mental conditionnon
mentioning
guilt
of
appellantsstatement recorded in sketchy and hurried
manner without following mandatory legal
requirement
u/s
164(4)-can
not
be
considered for conviction-prosecution failed
to prove the case beyond doubt-conviction
set-a-side.

Held: Para-63 & 69

## Text

_Characters 0–39,683 of 65,783. This is a partial read: ask again with offset=39683 for what follows._

2 All] Naviullah @ Magroo Vs. The State of U.P.
957
taking cognizance in the matter to
prosecute the accused person including
petitioner.

16 In this matter the trial court after
discussing the merit of the case ,
proceeded to summon the petitioner and
the learned counsel for the petitioner has
not argued on merit of the case and
pressed only point of deemed sanction, so
no finding is required to be recorded by
this Court at this stage on merit of the
case.

17. In view of the above, the petition
sans merit and is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.07.2013

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE VISHNU CHANDRA GUPTA, J.

Criminal Appeal No. 853 of 2005

Naviullah @ Magroo

 ...Appellant
Versus
The State of U.P.
 ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Mishra , Sri C M Shukla
Sri Girdhari Lal Shukla , Sri Ramendra
Kumar Misra
Sri Shailesh Kumar Srivastava and Sri
Shama Kidwai

Counsel for the Respondents:
G.A.

Criminal Appeal- Against conviction of life
imprisonment with fine of Rs. 10,000/--
under
section
302,
201,
376
I.P.C.-
conviction
of
appellant
based
upon
confession
made
before
magistrate-
without certifying about mental conditionnon
mentioning
guilt
of
appellantsstatement recorded in sketchy and hurried
manner without following mandatory legal
requirement
u/s
164(4)-can
not
be
considered for conviction-prosecution failed
to prove the case beyond doubt-conviction
set-a-side.

Held: Para-63 & 69
63. The judicial confession recorded by the
magistrate has failed the test of being a
reliable evidence owing to the reason of its
been recorded in absence of knowing the
mental condition of appellant at the time of
recording of statement, non specifying of
certificate, non mentioning of acceptance of
guilt of the appellant, non mentioning of
reason of confessing the crime and the
treatment meted out to the appellant at the
police station. Thus, seeing the holistic
purview the confessional statement of the
appellant has been recorded in a sketchy
and hurried manner without observing the
mandatory legal requirements.

69. In view of the above we are of the
firm
opinion
that
the
confessional
statement has not been recorded in
accordance with mandatory provisions of
law. Therefore, the trial court wrongly
considered
the
confession
as
an
incriminating circumstance. It is also
relevant to mention here that the alleged
confession is not admission of guilt by
the appellant and cannot be considered
by the court of law for recording finding
of conviction under Section 302 IPC.

Case Law discussed:
[([2008) 16 SCC 714]; AIR 1956 SC 217; AIR
1957 SC 637; AIR 1963 SC 1094; (1978) 4
SCC 90; AIR 1981 SC 2007; (1995) 2 SCC 76;
(2001) 4 SCC 9; (2010) 8 SCC 233; [AIR 1936
PC 253]; (2007) 1 SCC (Crl.) 702; (2011) 2
SCC 490;

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. Challenge in the present appeal is to
the Judgment and order dated 10.05.2005,
passed by IV Additional Sessions Judge,
Gonda in Sessions Trial no.59 of 2002
958 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
arising out of Case Crime No.132 of 2000
Police Station Sadulla Nagar, District Gonda
(Present
District
Balrampur),
whereby
appellant-accused was convicted under
Section 302 IPC and sentenced to life
imprisonment with fine of Rs.10,000/- and
two years rigorous imprisonment in default
stipulation.

2.

The
brief
conspectus
of
prosecution version shun unnecessary
details is such that P.W.1 Masiuddin S/o
Zhau R/o Village Ali Kulhiya, Pure
Kulhiya, P.S. Sadulla Nagar the then
District Gonda now Balrampur lodged a
report at Police Station Sadulla Nagar on
13.03.2000 at 8.15 a.m., got written by
Majibullah Siddiqui of Village Newada,
that his daughter Reshma Bano aged
about 9 years left home towards North at
about 7.00 PM on 11.03.2000 to purchase
biscuit from a nearby kiosk (Dabli) but
disappeared in front of the house of Tikai
Verma, he then alongwith other villagers
went in search of his daughter but could
not found till the morning of 13.03.2000
when he found the mutilated cadaver of
his daughter in the sugarcane field of
Tikai Verma. The chik FIR no.28
(Ext.Ka10)
was
prepared
by
Head
Moharrir Ravi Pratap Singh (P.W.7) at
P.S. Sadulla Nagar on 13.03.2000 at 8.15
AM and Case Crime No.132 of 2000 was
registered under Section 302, 201 I.P.C.
against unknown miscreant, the text of
which was entered in GD no.16 (Ext.Ka9); SO Vijay Bahadur Singh has been
entrusted the investigation and after
collecting other material and completing
requisite
procedure
of
investigation
submitted charge sheet under Sections
302, 201 and 376 I.P.C. The case was
committed to the court of Sessions.

3. The Sessions Judge has framed
charges against the appellant under
Sections 302, 201 and 376 I.P.C. The case
of the appellant was of false implication
and claimed trial. The prosecution in
order to prove its case examined eight
witnesses. P.W.1 Masiuddin (father of
deceased), P.W.2 Ramzan Ali (real
paternal uncle of deceased), P.W.3 Rabia
(mother
of
deceased),
P.W.4
Nur
Mohammad
(witness
of
memo
of
recovery of excreta of deceased & plain
earth, scissor, cloth of appellant, cloth of
deceased, plain & blood soaked earth),
P.W.5 Dharm Raj (last seen witness),
P.W.6
Indra
Dev
Dubey
A.C.J.M.
(recorded statement of appellant u/s 164
Cr.P.C.), P.W.7 Ravi Pratap Singh (scribe
of chik FIR, GD & appeared as secondary
witness for I.O. Vijay Bahadur Singh) and
P.W.8 Dr.P.S.Singh (conducted post
mortem of deceased); the appellant has
produced two witnesses D.W.1 Home
Guard no. 2312 Amin Ahmad (he
alongwith a constable took appellant to
court on 15.03.2000 at 10.15 a.m.) and
D.W.2 Mahesh Dutt Tiwari, Bandi
Rakshak, District Jail Gonda (produced
Gate Book of Jail filed a copy of Jail
register dated 15.03.2000, 19.20 hrs.
(Ext.Kha-1).

4. The learned Sessions Judge
convicted appellant under section 302 IPC
and acquitted under section 376 and 201
IPC. Hence this appeal.

5. We have heard Sri Shailesh
Kumar Srivastava and Sri C. M. Shukla
Advocate for the appellant and Ms. Ruhi
Siddiqi learned AGA for the State.

6. The Learned Counsel for
appellant submitted that there is no direct
evidence in the case. The chain of
incriminating
circumstances
is
not
complete.The recoveries do not connect
2 All] Naviullah @ Magroo Vs. The State of U.P.
959
appellant with the crime.The Sessions
Judge wrongly placed reliance on judicial
confession which has been recorded in
contravention of mandatory provisions of
law.

7. Per contra learned AGA has
supported the findings recorded by the
trial court.

8. In order to appreciate the rival
contentions of the counsel for the parties
it is necessary to examine the evidence on
record.

9. PW-1 Masiuddin deposed that on
11.3.2000 at about 7:00 his daughter
Reshma Bano aged about 9 years, had
gone to purchase biscuit from the shop of
Nabiullah alias Mangru. A little earlier his
eldest daughter Sakina Bano had gone to
purchase Pan from the shop of Mangru.
At the time of dusk his daughter Reshma
Bano did not return, therefore, they
started
searching
for
her
but
her
whereabouts could not be known. At that
time Dharamraj Badhai was also sitting at
his house. He told him that in the evening
at about 7:00 he had gone to purchase
biscuit from the shop of Mangru. At that
time Reshma Bano was present at the
kiosk of Mangru. Reshma Bano had asked
for one Nalli and he had given her one
Nalli and thereafter he came to his house.
His daughter Sakina also told him that
when she was going to purchase Pan
Reshma Bano had also gone to the shop.
She returned after purchasing Pan and her
sister stayed back. On the next day, they
were searching for her. On the second day
Mangru had told him that after Dharamraj
had purchased biscuit, Reshma had
returned towards the side of her house and
he had seen her going up to the house of
Tikai Verma. On the third day they again
started searching. The accused Naviullah
told them to see towards the side of
sugarcane field of Tekai Verma. He went
towards the field of sugarcane crop of
Tikai Verma and saw the dead body of his
daughter Reshma in mangled condition.
Her Shalwar was lying apart. He started
crying. Several persons of the village
reached there. Someone had thrown the
body after committing murder and she
had been brutally murdered. He also
stated that he had dispute with respect to
some land with Tikai Verma, Sagar and
Hanuman which is still pending in the
court of Commissioner. After recovery of
the dead body he had lodged report,
which is Ex. Ka-1.

10. In cross examination, he stated
that he did not name anyone in the report.
He had no suspicion on Naviullah. He
further stated that later on he came to
know that actual accused is Sonu Singh.
Naviullah had knowledge that Sonu Singh
had committed murder but he did not tell.
Had Naviullah told him everything
correctly, then actual accused Sonu Singh
would have been trapped and Naviullah
would not have been confined to jail. He
further stated that Bharat Singh is father
of Sonu Singh and is resident of village
Pure
Seer.
He
owns
tractor
and
motorcycle. He further stated that he had
seen Sonu Singh passing in front of his
house. He had never seen Sonu Singh
sitting with Naviullah and he had no
knowledge that Sonu Singh is friendly
with Naviullah. He further deposed that
on the date of incident, he was not at
home but went to Gaura Chowki Market;
when he came back, a visitor came to him
and stayed there for half an hour then he
started beating fodder. He also deposed
that he had enquired about his daughter
from Naviullah. When he went to enquire
960 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
about his daughter from Naviullah, he
was returning after closing the shop at
about 7:30-8:00 p.m. Naviullah used to
close his shop at that time.

11. PW-2 Ramzan Ali deposed that
Masiuddin is his real brother. On the date
of incident, he was attending the marriage
and returned at about 8 p.m. and came to
know that Reshma Bano aged about 9
years, is missing. She had gone to
purchase biscuit from the shop of
Naviullah, where Dharamraj gave one
Nalli to Resahma at the shop of Naviullah
then came to the house of Masiuddin. In
search of Reshma, this witness and
Masiuddin went to the house of Naviullah
where his father informed that he went to
village Alinagar to watch video but when
he went to Alinagar, he did not find either
Naviullah or his betel shop. On second
day he searched for Reshma but he did
not find her. However, when Naviullah
came to open his shop he intimated that
Dharamraj gave one Nalli to Reshma and
she returned back home. Reshma Bano
was last seen by Dharamraj Badhai on the
kiosk of Naviullah. His brother Masiuddin
had seen the dead body of Reshma in the
sugarcane field of Tikai. Thereafter report
was lodged and Inquest was prepared,
which is Ex. Ka-2. He further stated that
in his presence and in the presence of
police and Noor Mohammad, Naviullah
told that at the time of rape, stool had
passed and he had shown the same to the
investigating officer in the field of Tekai
and the investigating officer prepared
recovery memo which is Ex. Ka-3. At the
instance of Naviullah, a scissor was
recovered and a recovery memo thereof
was prepared which is Ex. Ka-4. The
police had also recovered clothes of
accused and prepared recovery memo
which is Ex. Ka-5.

12. In cross examination, he
admitted
that
the
dead
body
was
recovered on the third day and prior to
that they had seen the field but nothing
was found there. He deposed that the dead
body was recovered on the third day at 7
a.m. when his brother had gone to answer
the call of nature and he raised alarm. He
has proved his signatures on Ex. Ka-3,
Ka-4 and Ka-5 and stated that it was not
read out to him but due to fear he signed
the papers. He further stated that the
recovered scissor is for cutting betel
leaves. He further stated that Naviullah
was arrested on the same day when body
of Reshma was found.

13. PW-3 Rabia deposed that on the
date of incident, her daughter had gone to
purchase biscuit from the shop of
Mangru. Mangru is also known by the
name Nabiullah. On the said date, she and
her husband were beating mustard seeds
and Dharamraj Badhai had come to her
house. She had searched for her daughter
at various places. Dharamraj Badhai had
told her that her daughter was present at
the shop of Mangru. He had given her one
Nalli (biscuit). The shop of Naviullah
(Mangru) was closed. On the next day,
they had enquired from Mangru. He told
that he had seen her daughter alongwith
Dharamraj. On the next day, her husband
saw the dead body in the sugarcane field
of Tikai. During her cross examination
she refuted to know about Sonu Singh and
further refuted of having any enmity with
Tikai Verma.

14. PW-4 Noor Mohammad deposed
that the S.I. had collected blood stained
and plain earth in his presence and
prepared recovery memo (Ex. Ka-6). He
had also prepared the recovery memo of
the clothes and slippers of Reshma which
2 All] Naviullah @ Magroo Vs. The State of U.P.
961
is Ex. Ka-7. The clothes of Naviullah
taken into possession by the S.I. are Ex.
Ka-5. He had also recovered a scissor
from the shop of Naviullah which is Ex.
Ka-4. He though admitted his signatures
on Ex. Ka-3 but stated that he had neither
read it nor it was read over to him.

15. In cross examination he admitted
that in the shop of Naviullah, Sahu and
Parasu also used to sit.

16. PW-5 Dharamraj deposed that
Mangru alias Naviullah sells Pan, biscuit,
nalli, chocolate etc. He had purchased
biscuit of Re. 1 from his shop. At that
time daughter of Masiuddin, Reshma was
standing there. He had given her one
Nalli. Thereafter he came to the house of
Masiuddin. He stayed for half an hour at
the house of Masiudddin. The children of
Masiuddin had asked whether he had seen
Reshma. He told them that he had seen
Reshma Bano at the shop of Mangru.

17. In cross examination he denied
to have given any statement that wife of
Masiuddin had enquired about Reshma
Bano. He stated that he is not aware as to
how his statement has been written by the
investigating officer and he refuted to
have made such statements to the
investigating officer.

18. PW-6 Indra Dev Dubey,
Additional Civil Judge, Senior Division,
Pratapgarh deposed that on 15.3.2000, he
was posted as Judicial Magistrate-I,
Balrampur. He stated that on the same day
he had recorded the statement of
Naviullah under Section 164 Cr.P.C. He
had asked questions to get satisfied that
the witnesses is deposing independently
and without any influence. He told the
witness that confession can be read
against him and he may be convicted.
Thereafter he had read over the statement
and obtained thumb impression. He had
proved the statement under Section 164
Cr.P.C. of Naviullah as Ex. Ka-8.

19. In cross examination he stated
that he did not mention 'confession' in his
statement under Section 164 Cr.P.C. After
preparing the statement under Section 164
Cr.P.C., he did not write the certificate as
mentioned in Section 164 (4) Cr.P.C. He
had enquired from Naviullah as to why he
wants to confess the crime but he did not
mention the reply in his statement. He
further stated that he had not recorded the
statement in police custody. He was
produced for the first time on 15.3.2000.
He had given time to ponder over the
matter. He was produced in the morning
and he had given him a whole day to
ponder before making the statement and
his statement was recorded after 3:30 p.m.
He did not ask any question about the
treatment meted out to him by police. He
did not mention the question-answer.
When the statement was recorded, there
was no police personnel present and when
the statement was being recorded, no one
was permitted to enter the court room.

20. PW-7 S.I. Ravi Pratap Singh
deposed that on 13.3.2000, he was posted
as Head Moharrir at P.S. Sadulla Nagar.
On the basis of the written information
given by Masiuddin on 13.3.2000 at 8:15
p.m., he had registered case crime no.
132/2000. He had prepared G.D. also
which is Ex. Ka-9. Chik report is Ex. Ka10. He has proved Ex. Ka-2 to Ka-7 in the
handwriting of Vijay Bhadur Singh, the
S.H.O. who had died in between. He also
proved Ex. Ka-11, 12, 13, 14, 15, 16, 17
and 18, which were prepared by Vijay
Bahadur Singh.
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

21. In cross examination, he deposed
that he cannot tell as to when the articles
in this case were sent to scientific
laboratory and why they were sent
belatedly.

22. PW-8 Dr. P.S. Singh, Medical
Officer, PHC, Chandauli had conducted
autopsy on the dead body of the deceased.
He noted the following ante mortem and
post mortem injuries on the person of the
deceased:

ANTI MORTEM INJURIES

1.Lacerated wound 2 cm. x 0.5 cm.
present in front of left elbow

2.Abrasion 10 cm. x 7 cm. present on
the front of neck, below chin.

POST MORTEM INJURIES:

23. Both lower limbs below knee
absent. Only two femur bones present
which had no muscle, whole abdominal
parts and walls missing. All internal
organs of abdomen and perineum absent,
only part of liver present.

24. The defence had examined DW1 Home Guard Amin Ahmad, who
deposed that in March, 2000 he was
posted as Home Guard in P.S. Sadulla
Nagar. On 13.3.2000 he had brought the
sealed dead body of Reshma Bano in
mortuary. On 15.3.2000 the accused
Naviullah was taken to the court at about
10:15 a.m. where he was produced in the
court of Chief Judicial Magistrate for
remand. At that time S.I. had also reached
there. Firstly the accused was produced in
the court of C.J.M. for recording
confessional statement and the C.J.M.
asked them to produce him before J.M.-I.
The magistrate had asked to come after
lunch and thereafter statement was
recorded. The remand of accused was
taken and then he was lodged in Gonda
jail at about 7 p.m. When the confessional
statement of the accused was being
recorded in the court of magistrate, they
were sitting at the gate of the court. The
S.I. was present alongwith accused in
plain dress. When the magistrate had
asked them at about 11 a.m. to go out of
the court, Vijay Bahadur Singh, S.I. had
brought him to the tea shop. Thereafter
S.I. had got his statement recorded.

25. In cross examination, he
admitted that after recording of Section
164 Cr.P.C. statement, they had produced
the accused in the court of J.M.-I around
12 noon. Thereafter he had given time to
the accused for pondering over the
statement to be given by him and then
statement was recorded at 3:30 p.m.
When the statement under Section 164
Cr.P.C. was recorded, no police personnel
was present in the court room. He himself
said that S.I. was sitting.

26. DW-2 Mahesh Dutt Tiwari, had
produced the gate book of district jail
Gonda for the period 14.3.2000 to
27.3.2000. He deposed that Naviullah
after being challaned from police station
was lodged in jail on 15.3.2000 at 7 p.m.
The copy of entry of the jail book is Ex.
Kha-1.

27. The entire gamut of facts and
evidence of the present case points to only
two categories of evidence; the first is
circumstantial evidence and the other is
confessional
evidence.
So
far
as
circumstantial evidence is concerned, the
law is settled in plethora of cases like
Rukia Begum Vs State of Karnataka
[2011 (4) SCC 779], Arun Bhanudas
2 All] Naviullah @ Magroo Vs. The State of U.P.
963
Pawar Vs State of Maharashtra [2008
(61)ACC 897 (SC)] etc. wherein it is
established that the court has to satisfy the
following test to held the accused guilty:

1.The circumstances inferring the
guilt must be coherently and steadily
established.

2.The circumstances must be explicit
and precisely points the guilt.

3.The
circumstances
should
cumulatively form a complete chain that
conclusively
and
with
all
human
probability the crime has committed by
the accused and none else; and

4.The circumstantial evidence in
order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that guilt of the
accused but should be inconsistent with
his innocence.

28. The Sessions Judge has
considered
following
incriminating
circumstances against appellant.

1. Last Seen of the deceased along
with the appellant.

2. Recoveries under section 27 of the
Evidence Act.

3. Confession before magistrate
recorded under section 164 CrPC.

29. First incriminating circumstance
considered by the Sessions Judge is last
seen of the deceased along with the
appellant and thereafter deceased was not
seen alive. P.W1 Masiuddin has not
deposed about the last seen of the
deceased along with appellant. In fact he
had given clean chit to the appellant. He
also stated that when he received
information that his daughter did not
return he had gone to enquire from
Naviullah about 7.30 or 8 p.m. and he was
going to his shop after closing. Naviullah
used to close his shop at that time.

30. P.W.2 Ramzan Ali had not seen
deceased
along
with
appellant.
He
deposed that he had gone to the house of
Naviullah but he was not there and his
father had told him that he had gone to
Ali Nagar to watch video. When he
reached Ali Nagar there was no Pan shop
and Naviullah was also not there. He
further stated that next day when
Naviullah had opened his shop he
enquired about Reshma. He told him that
Dharam Raj had purchased Nalli (Biscuit)
and he had given one Nalli to Reshma.
She had returned to her house and he had
seen her going upto mango tree.

31. P.W.3 Rabiya is mother of
deceased Reshma. She had not seen
accused along with deceased.

32. P.W.5 Dharmraj deposed that He
had purchased four nallis for one rupee
and Reshma daughter of Masiuddin was
also there. He had given one nalli to
Reshma thereafter he came to the house
of Masiuddin and stayed there for half an
hour. He further stated that the children of
Masiuddin enquired about Reshma Bano
and he told them that he had seen her at
the shop of Mangru and thereafter he did
not see her. He also told them that he had
given her one Nalli. He further clarified
that he had told them at his house and not
at Masiuddin house. He denied to have
given statement to investigating officer
that he had told about Reshma to the wife of
Masiuddin In the cross examination he also
stated that in the kiosk of Naviullah, Sahu
and Parsu also sit there. The only testimony
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
to prove the incriminating circumstance of
last seen is of P.W. 5 Dharamraj. We have
carefully considered the entire evidence to
examine whether the evidence on record
proves the incriminating circumstance of
last seen. P.W.5 Dharamraj has deposed
only about the presence of Reshma at the
shop of appellant. P.W.1 Masiuddin, father
of the deceased, stated that he was searching
for Reshma and reached at about 7.30-8 p.m
at the shop of appellant and at that time
appellant was going home after closing his
shop, whereas PW-2 Ramzan Ali stated to
have gone to the house of Naviullah at night
in search of Reshma Bano from where he
was intimated by his father that he had gone
to Ali Nagar to watch video. P.W4 Noor
Mohd. also admitted that in the kiosk of
Naviullah two other persons namely Sahu
and Parsu also sit there. In the case of State
of Goa v. Pandurang Mohite, [(2008) 16
SCC 714], the Apex Court observed that
the last seen theory comes into play where
the time gap between the point of time
when the accused and the deceased were
last seen alive and when the deceased is
found dead is so small that possibility of
any person other than the accused being the
author of the crime becomes impossible.

33. It is pertinent to note that PW-5
Dharamraj was purportedly the only last
seen witness who saw the deceased at the
kiosk of appellant but he has not stated as
to at what time he has seen the deceased
at
the
kiosk
of
appellant.
PW-1
Masiuddin, however, stated that on
11.3.2000 at 7 p.m., Dharamraj was at the
kiosk and in cross examination he has
stated that he went to the kiosk of
Naviullah at 7:30 to 8:00 p.m. and found
that he was closing the kiosk. Even the
informant stated to have seen the deceased
returning back home, whereas, the dead body
of the deceased was recovered from the field
of Tikai Verma on 13.3.2000 at 7:30 p.m.
though according to PW-1 Masiuddin he
searched the place a day before but could not
find the dead body. This creates a genuine
doubt on the appellant being author of crime.
Moreover, there is a wide gap of time
between the point of time when the accused
and the deceased were last seen alive and
when the deceased was found dead.

34. In view of the above we are of
the opinion that the prosecution has not
firmly proved that the deceased was last
seen along with appellant and being the
author of crime.

35. Next circumstance considered by
the trial court is recovery of a scissor at
the instance of appellant from his shop.
Recovery of scissor from the shop of
appellant has been believed by the trial
court as an incriminating circumstance.

36. P.W.4 Noor Mohd. has proved the
recovery of scissor from his shop. It is
relevant to point out that the scissor is not
connected with the crime. According to
serologist report no blood was found on the
scissor. The testimony of P.W.8 Dr .P. S.
Singh is also very relevant. He admitted that
the injuries mentioned in the post mortem
report could not be caused by scissor.
Therefore, the Sessions Judge has wrongly
considered recovery of scissor from the shop
of appellant as an incriminating circumstance
for completing the chain of incriminating
circumstances against the appellant.

37. The Sessions judge did not rely
upon the serologist report about the
presence of semen on the underwear of
the appellant.

38. Lastly, the most important
incriminating circumstance relied upon by
2 All] Naviullah @ Magroo Vs. The State of U.P.
965
the trial court for recording conviction of
the appellant is his judicial confession,
which is quoted below:

"Bayankarta ko yeh samman diya gaya
hai ki woh bayaan karne ke liye swatantra
hai aur uska bayaan uske viruddh saakshya
ke roop me padha jaaega. Abhiyukt
Naviullah ne shapathpoorvak bayaan diya ki
main apne gaon me paan bidi ki dukaan karta
hoon, Sonu Thakur dopaher ko meri dukaan
par aaye aur scooter se aaye thhe unke aage
unka tractor ganna lekar jaa raha thha aur
Sonu ne ek joda paan khaaya aur paisa baad
me dene ko kaha wapas Sonu (7:30 p.m.)
saadhe saat baje shaam ko aaye aur kaha ki
Mashiuddin ki badi ladki Shakina jab aaye to
usey rok lena aur shaam ko 7 baje shakina ki
chhoti bahen hasina paan lene aayi tab maine
usey rok liya uske baad uski chhoti bahen
aayi aur hasina chali gayi aur chhoti bahen
mere paas ruki rahi uski umr 9-10 saal rahi
hogi.

Sonu 7:30 p.m. ke lagbhag aaya aur
ek paan khaaya aur chhoti ladki ko do
toffee khilwaya aur hamari dukaan band
karwa diya aur hamari kainchi liya aur
uske kahne par main chhoti ladki ko
ganne ke khet me lekar uske saath gaya
scooter dukan par hi khada raha.

Sonu ke kahne par ladki ka salwaar
maine utara tab woh rone lagi tab sonu ne
kaha ki tum iska gala dabao tab main gala
dabaya aur sonu uske saath balatkaar
karne laga balatkaar karte samay ladki ka
peshab ka sthan bilkul phat gaya aur woh
mar gayi tab case chhipane ke liye Sonu
ne ladki ka pet phad diya aur ladki ka
dono paer hath tod diya aur main kaapne
laga aur main chal diya aur Sonu ladki ka
paer kahin anyatra ghayab kar diya aur
mujhe dhamkaya thha tabhi main kisi ko
ghatna nahin bataya.

Main uprokt bayaan swechha se kar
raha hoon mujh par koi dabav nahin hai."

39. Section 24 of the Evidence Act
provides that, a confession made by an
accused person is irrelevant in a criminal
proceeding,
if
the
making
of
the
confession appears to the Court to have
been caused by any inducement, threat or
promise, having reference to the charge
against the accused person, proceeding
from a person in authority and sufficient,
in the opinion of the Court, to give the
accused person grounds, which would
appear to him reasonable, for supposing
that by making it he would gain any
advantage or avoid any evil of a temporal
nature in reference to the proceedings
against him. The relevant provisions for
recording confession by magistrate are
Section 164, 218 and 463 of the Code of
Criminal Procedure which are quoted
below.

"Section
164.
Recording
of
confessions and statements. -- (1) Any
Metropolitan
Magistrate
or
Judicial
Magistrate may, whether or not he has
jurisdiction in the case, record any
confession or statement made to him in
the course of an investigation under this
Chapter or under any other law for the
time being in force, or at any time
afterwards before the commencement of
the inquiry or trial:

Provided that any confession or
statement made under this sub-section
may also be recorded by audio-video
electronic means in the presence of the
advocate of the person accused of an
offence:

Provided further that no confession
shall be recorded by a police officer on
whom any power of a Magistrate has been
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
conferred under any law for the time
being in force.

(2)The
Magistrate
shall,
before
recording any such confession, explain to
the person 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 the Magistrate shall not record
any
such
confession
unless,
upon
questioning the person making it, he has
reason to believe that it is being made
voluntarily.

(3)If
at
any
time
before
the
confession
is
recorded,
the
person
appearing before the Magistrate states that
he is not willing to make the confession,
the Magistrate shall not authorise the
detention of such person in police
custody.

(4) Any such confession shall be
recorded in the manner provided in
Section 281 for recording the examination
of an accused person and shall be signed
by the person making the confession; and
the Magistrate 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.

(Signed) A.B. Magistrate."

(5)Any statement (other than a
confession) made under sub-section (1)
shall be recorded in such manner
hereinafter provided for the recording of
evidence as is, in the opinion of the
Magistrate,
best
fitted
to
the
circumstances of the case; and the
Magistrate shall have power to administer
oath to the person whose statement is so
recorded.

(6) The Magistrate recording a
confession or statement under this section
shall forward it to the Magistrate by
whom the case is to be inquired into or
tried.

281. Record of examination of
accused.--(1) Whenever the accused is
examined by a Metropolitan Magistrate,
the Magistrate shall make a memorandum
of the substance of the examination of the
accused in the language of the Court and
such memorandum shall be signed by the
Magistrate and shall form part of the
record.

(2)Whenever
the
accused
is
examined by any Magistrate other than a
Metropolitan Magistrate, or by a Court of
Session, the whole of such examination,
including every question put to him and
every answer given by him, shall be
recorded in full by the presiding Judge or
Magistrate himself or where he is unable
to do so owing to a physical or other
incapacity,
under his direction
and
superintendence by an officer of the Court
appointed by him in this behalf.

(3)The record shall, if practicable, be
in the language in which the accused is
examined or, if that is not practicable, in
the language of the Court.
2 All] Naviullah @ Magroo Vs. The State of U.P.
967

(4)The record shall be shown or read to
the accused, or, if he does not understand the
language in which it is written, shall be
interpreted to him in a language which he
understands, and he shall be at liberty to
explain or add to his answers.

(5)It shall thereafter be signed by the
accused and by the Magistrate or
presiding Judge, who shall certify under
his own hand that the examination was
taken in his presence and hearing and that
the record contains a full and true account
of the statement made by the accused.

(6)Nothing in this section shall be
deemed to apply to the examination of an
accused person in the course of a
summary trial.

463.
Non-compliance
with
provisions of Section 164 or Section
281.-- (1) If any Court before which a
confession or other statement of an accused
person recorded, or purporting to be recorded
under Section 164 or Section 281, is
tendered, or has been received, in evidence
finds that any of the provisions of either of
such sections have not been complied with
by the Magistrate recording the statement, it
may, notwithstanding anything contained in
Section 91 of the Indian Evidence Act, 1872
(1 of 1872), take evidence in regard to such
non-compliance, and may, if satisfied that
such non-compliance has not injured the
accused in his defence on the merits and that
he duly made the statement recorded, admit
such statement.

(2) The provisions of this section
apply to Courts of appeal, reference and
revision."

40. It has been held in catena of
decision by the Apex Court that before
proceeding to record the confessional
statement, a searching enquiry must be
made from the accused as to the custody
from which was produced and the
treatment he had been receiving in such
custody in order to ensure that there is no
scope for doubt of any sort of influence
proceeding from a source interested in the
prosecution still lurking in the mind of the
accused. In case the Magistrate discovers
on such an 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
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, of
course
of
trial,
even
if
contrive
subsequently to retract the confession.
Besides
administering
the
caution,
warning specifically provided for in the
first part of sub-section (2) of Section 164
Cr.P.C., 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 or such
extraneous agent like police, in case he
declines to make the statement and he
give the assurance that even he declines to
make the confession he shall not be
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 judicial mind to
ascertain and satisfy his conscience that
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the statement the accused makes, is not
borne out of any extraneous influence
exerted on him. That indeed is the essence
of a "voluntary statement within the
meaning of the provisions of Section 164
Cr.P.C.". Moreover, the Magistrate must
not only be satisfied as to the voluntary
character of the statement, he should also
make and leave such on the record, proof
of
compliance
that
the
imperative
requirement of the statutory provision, as
would satisfy the court that sits in
judgement
in
the
case
that
the
confessional statement was made by the
accused voluntary and the statutory
provisions were strictly complied with.
Section 164 of the Code of Criminal
Procedure is a salutary provision which
lays down certain precautionary rule to be
followed by the Magistrate regarding a
confession
so
as
to
ensure
the
voluntariness of the confession and the
accused be placed in a situation free from
threat or influence of the police. Section
164 Cr.P.C. provides for safeguards for an
accused. The provisions contained therein
are required to be strictly complied with.

41. The Apex Court in the case of
Aher
Raja
Khima
V.
State
of
Saurashtra reported in AIR 1956 SC
217 has observed that now 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. It was further
observed that it is abhorrent to our notions
of justice and fair play, and is also
dangerous, to allow a man to be convicted
on the strength of a confession unless it is
made voluntarily and unless he realises
that anything he say may be used against
him; and may attempt by a person in
authority to bully a person into making a
confession or any threat or coercion
would at once invalidate it if the fear was
still operating on his mind at the time he
makes the confession if it would appear to
him reasonable for supposing that by
making it, he would gain any advantage
or avoid any evil of a temporal nature in
reference to the proceedings against him.

42. In Sarwan Singh V. The State
of Punjab reported in AIR 1957 SC
637- the Apex Court held that prima facie
whether or not the confession is voluntary
would be a question of fact and we would
be reluctant to interfere with a finding of
such question of fact unless we are
satisfied that the impugned finding has
been reached without applying the true
and relevant legal test in the matter. As in
the case of evidence given by the
approver, so too unfortunately in the case
of the confession of Sarwan Singh the
attention of the learned Judges below does
not appear to have been drawn to some
salient and grave features which have a
material bearing on the question about the
voluntary character of the confession.

43. In Pyare Lal v. State of
Rajasthan reported in AIR 1963 SC
1094, it has been held by the Apex Court
that under S. 24 of a confession would be
irrelevant if it should appear to the court
to have been caused by any inducement,
threat or promise. The crucial word is the
expression "appears" is "seems". It
imports a lesser degree of probability than
proof. The standard of a prudent man is
not completely displaced, but the stringent
rule of proof is relaxed. Even so, the
laxity of proof permitted does not warrant
a court's opinion based on pure surmise. A
prima facie opinion based on evidence
and circumstance may be adopted as the
standard laid down. To rephrase it, on the
2 All] Naviullah @ Magroo Vs. The State of U.P.
969
evidence and the circumstances in a
particular case it may appear to the court
that there was a threat, inducement or
promise, though the said fact is not
strictly proved. It is further observed that
the threat, inducement or promise must
proceed from a person in authority and it
is a question of fact in each case whether
the person concerned is a man of
authority or not.