Holding

The confession was not admissible as it was not made voluntarily and the safeguards under Section 164 were not complied with, leading to the setting aside of the conviction and death sentence.

Summary

Babubhai Udesinh Parmar was convicted of raping and murdering a minor girl, Savita, primarily on the basis of a confession recorded by a Chief Judicial Magistrate under Section 164 of the Cr.P.C. The Supreme Court found that the confession was recorded without observing the statutory safeguards: it was taken on oath (which is prohibited), the accused was not provided free legal aid, and insufficient time was allowed for reflection, especially as another confession was recorded shortly thereafter. Moreover, the confession conflicted with the prosecution evidence regarding the time of the crime and the circumstances of the victim’s sleeping arrangements, and there was no independent corroborative evidence. The Court held that the confession could not be deemed voluntary, truthful, or reliable, and therefore could not support a conviction or death sentence. Consequently, the judgment of conviction and death penalty was set aside and the appeal was allowed.

Issues considered

Whether a confession recorded under Section 164 of the Cr.P.C. is admissible when procedural safeguards are not complied with.
Whether the confession was made voluntarily, without oath, and free from police influence.
Whether the lack of free legal aid to the accused violates statutory requirements.
Whether the conviction can rest solely on a confession absent corroborative evidence.
Whether the administration of oath to the accused invalidates the confession.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 313
Indian Evidence Act, 1872s. 24

Subjects

judicial confessionSection 164voluntarinesslegal aidoath prohibitedcorroborationdeath penaltyrape and murderprocedural safeguards

Judgment

BABUBHAIUDESINHPARMAR A
v.
STATE OF GUJARAT

NOVEMBER 24, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Code of Criminal procedure, 1973; Ss. 164 and 313:

Rape and murder of a minor girl-Judicial confession-Trial Court
found accused guilty of committing offences of rape and murder and imposed C
death penalty-Affirmed by High Court-On appeal, Held: Apart from
purported confession, no other material was sufficient to establish guilt of the
accused-Inconsistencies appeared in prosecution case vis-a-vis purported
confession-Oath administered to accused which is prohibited in law-It
assumes significance since his evidence on oath also recorded-A judicial D
confession admissible in evidence and treated as relevant fact-A judgment
ofconviction could be based on a confession iffound to be truthful, deliberate
and voluntary-Provisions under Section 164 Cr.P. C. provides safeguards for
an accused-Therefore, these provisions required to be complied with strictly--
Magistrate had recorded the confession in the present case and another case
in quick succession instead of giving reasonable time in-between as both the E
cases involved serious offences and resulted in extreme penalty-There was
no direction to provide free legal aid to the accused though he had made
confession in number of cases at the same time-Purported corroborated
evidence brought on record by prosecution not sufficient to prove guilt of
accused-Hence impugned judgment set aside. F
Accused-appellant allegedly committed rape and murder of a minor girl.
Allegedly, the accused had taken her from the shed where she was sleeping
along with her family members. On the next day morning, her dead body was
found lying in the surrounding field. Her neck was tied with a frock which
was worn by her. Blood was found to have been oozing out from her private G
part. The knicker worn by her was also missing. Brother of the the deceased
made a complaint to police. The accused was arrested by the Police. Later, he
purported to have made a confessional statement before PW-2, Judicial
Magistrate. Trial Court, principally relying on or on the basis of the judicial

401 H
402 SUPREME COURt REPORTS [2006] SUPP. 9 S.C.R.

A confession made by him, found him guilty of commission of offence of rape
and murder. The trial Court also took into consideration the fact that the
accused has been found guilty of commission of similar offences as also other
offences in other cases and imposed death penalty on him. The High Court
affirmed the judgment of conviction and sentence. Hence the present appeal.

B Allowing the appeal, the Court

HELD: 1.1. Rape and murder of the minor girl is not in dispute before
this Court. It is also not disputed that apart from the purported judicial
confession there is no other material which can be said to be sufficient to
establish the guilt of the accused. The Chief Judicial Magistrate recorded
C the confession on the basis of an application made by the Investigating Officer.
An application was also filed to record the confession of the accused in another
case. (405-A; 406-A-BJ

1.2. The Magistrate examined himself as PW-2. In his deposition he
D reproduced the statements of the accused. In his cross-examination, he accepted
that the confession started at about 11.15 a.m. and was completed at about
11.30 a.m. He did not remember that on the same day he recorded another
confession of the accused in relation to another Session Cast:. He, however,
accepted that he had done so when it was brought to his notice. Recording of ·· ·
that confession was completed at 11.45 a.m. Till then no legal aid was provided
E to him. He did not examine the body of the accused. He asked only the routine
question as to whether he was ill-treated by the police. He accepted that the
accused was produced before him under police protection and was also taken
back under the police protection. (406-F-G-H; 407-A]

1.3. Two inconsistencies appeared in the prosecution case vis-a-vis the
F purported confession. The evidence of the brother of the deceased categorically
shows that the offence was committed in between 2 a.m. and 4 a.m. The
purported confession shows that the offence was committed around 12 O'
Clock in the night. The prosecution case proved that not only the complainant
but also other family members were sleeping in the same shed. The purport
G of the confessions goes to show that the deceased was sleeping alone in the
shed. (407-B-C)

, 1.4. It is not appreciated as to why oath had to be administered to the
accused while recording confession. Recording of statement of an accused
on oath is prohibited. It may or may not be of much significance. But, it may
H
BABUBHAI UDESINH PARMAR v. ST ATE OF GUJARAT 403
assume significance when it is examined that a purported deposition of accused A
was taken wherein also his evidence on oath was recorded. 1407-D-E)

1.5. A judicial confession undoubtedly is admissible in evidence. It is a
relevant fact A judgment of conviction can also be based on a confession if it
is found to be truthful, deliberate and voluntary and if clearly proved. The
voluntary nature of the confession depends upon whether there was any threat, B
inducement or promise and its truth is judged on the basis of the entire
prosecution case. 1408-C-D)

Bharat v. State of U.P., 11971) 3 SCC 950 and Subramania Goundan v.
The State of Madras, [1958) SCR 429, relied on.
c
2.1. Section 164 provides for safeguards for an accused. The provisions
contained therein are required to be strictly complied with. But, it does not
envisage compliance of the statutory provisions in a routine or mechanical
manner. [409-C-Dl

. State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru, (2005111 SCC D
600, relied on.

2.2. The court must give sufficient time to an accused to ponder over as
to whether he would make confession or not. The appellant was produced from
judicial custocfy but he had been in police custody for a period of 16 days. The E
Magistrate should have taken note of the said fact It would not be substantial
compliance of law. What would serve the purpose of the provisions contained
in Section 164 of the Code of Criminal Procedure are compliance of spirit of
the provisions and not merely the letters of it (409-D-E)

2.3. The manner in which the confession was recorded in this case is F
not appreciated. The accused was produced at 11.15 a.m. The first confession
was recorded in 15 minutes time which included the questions which were
required to be put to the accused by the Magistrate for arriving at its
satisfaction that the confession was voluntary in nature, truthful and free from
threat, coercion or undue influence. It is a matter of some ccmcern that he
started recording the confession of the accused in the second case soon G
thereafter. Both the cases involved serious offences. They resulted in the
extreme penalty. The Magistrate, therefore, should have allowed some more
tim.e to the accused t11 make his statement He should have satisfied.himself
as regards the voluntariness and truthfulness of the confession of the accused.
(409-F-G-H) H
404 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Devendra Prasad Tiwari v. State of UP., AIR (1978) SC 1544 and
Kashmira Singh v. State of Madhya Pradesh, AIR (1952) SC 159, relied on.

3.1. There was no direction to provide free legal aid to the accused. He·
had no opportunity to have independent advice. Though, it does not mean that
such legal assistance must be provided in each and every case but in a case
B of this nature where the accused is said to have confessed in a large number
of cases at the same time, the State could not have denied legal aid to him for
a period of three years. [411-G-H; 412-A)

Parmananda Pegu v. State ofAssam, AIR (2004) SC 4197, relied on.

C 3.2. The purported corroborative evidence brought on record by the
prosecution and as noticed by the High Court did not indicate that the accused
was guilty of commission of the offence. The circumstances were not such
which formed links in the chain and point out only to the guilt to the accused
and accused alone. Hence, this Court is constrained to record disagreement
D with the ultimate findings of the Sessions Judge as also the High Court.
However, it is observed that this Court has only considered the merit of the
present appeal. Each case against the accused must be judged on the basis of
the legal evidence brought on records. [412-C-D-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1635 of
E 2005.

From the Final Judgment and Order dated 2-3-2005 of the High Court
of Gujarat at Ahmedabad in Criminal Confirmation Case No.4/2003 with Criminal
Appeal No.1625/2003.

F June Choudhary, Sumit Goel, Ranjeeta Rohtagi, Mary Mitzy and Parekh
for the Appellant.

Hemantika Wahi and Pinky Behera for the Respondent.

The Judgment of the Court was delivered by
G
S.B. SINHA, J: The appellant herein was a labourer. He is said to have
committed a series of offences involving heinous crimes. He is involved also
in a case of rape and murder of a minor girl Savita. She was sister of Shankar
Bhursinh (complainant). He lodged a First Information Report on 1.07 .1998
inter alia stating that he with a view to earn his livelihood came with his
H
BABUBHAIUDESINHPARMAR v. STATE OF GUJARAT [S.B. SINHA,J.] 405

family to Karamsad town. He was staying in a shed opposite to Tirupati Petrol A
Pump. He was sleeping in that shed. He woke up at about 2 a.m. for answering
the call of nature. At that time her sister was sleeping along with other family
members. When he woke up again, he did not find Savita. It was raining on
that night. Searches were made for her. On the next day morning, her dead
body was found lying in the surrounding field belonging to Malabhai and B
Kanbhai. Her neck was tied with a frock which was worn by her. She was
found to be dead. The blood was found to have been oozing out from her
private part. The knicker worn by her was also missing. He informed the
police. The appellant was arrested by the in'!estigating officer Mr. R.G. Patel
on 12.08.2002. He purported to have made a confession about committing rape
and murdering Sa vita. He also allegedly showed the place of incidence to the C
investigating officer. He prepared panchnama of the scene of offence and
recorded statement of the concerned witnesses. He then sent the frock worn
by the deceased to Forensic Science Laboratory. The appellant purported to
have made a confessional statement before PW-2 Ambalal.

Principally relying on or on the basis of said judicial confession made D
by the appellant, he was found guilty of commission of offence. The learned
Sessions Judge took into consideration the fact that he has been found guilty
of commission of similar offences as also other offences and, thus, imposed
death penalty on him. The High Court affirmed the said judgment of conviction
and sentence by its judgment dated 2.03.2005. E
The High Court while recording that the confession was found not only
to be true but having been voluntarily made, opined that the same could be
relied upon. At the same time, the High Court proceeded on the basis that
the accused was free to make retraction of his confession when his statement
under Section 313 of the Code of Criminal Procedure was recorded. The High p
Court furthermore noticed that oath should not have been administered to the
accused but opined that the same is not of much significance but proceeded
on the basis that the decisions of the Apex Court have often said that the
court cannot solely rely on the retracted confession and make it a foundation
for convicting the accused. But, while purporting to keep the confessional
statement of the appellant aside, it examined the purported circumstances G
used against him. We are afraid, nothing has been brought on record to show
existence of any circumstance which would lead to the conclusion that the
appellant alone is guilty of commission of the offence.

Rape and murder of Savita is not in dispute before us. It is also not H
406 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R ..

A disputed before us as that apart from the purported judicial confession there
is no other material which can. be said to be sufficient to establish the guilt
of the appellant. The Chief Judicial Magistrate, Nadiad recorded the confession
on the basis of an application made by the said Mr. R.G. Patil. An application
was also filed to record the confession of the appellant in another case
B bearing No. l.C.R. No. 123of1997.

The confession was recorded on 7.09.2000. He was in judicial custody
for a period of 16 days. His statement is as under:

"The incident is of two years old I do not remember the exact date.
On that day I was at my house and at night say around 12.00 I went
c to the field which is at opp Karamsad Petrol Pump. I don't know
whose field is this. On being reached to the field I saw that there was
one shed with a___, and under that shed one girl was sleeping.
I have lifted her. I don't know the age of the girl, as soon as she
wanted to shout I have closed her mouth, and behind that field one
D cannel is there and I have taken the girl in that cannel, there was a
field near the cannel, and in that field one tree namely baval was there
and one floor was constructed thereon. ' have taken the girl to that
field, I have removed the cloth of the girl in the field, the mouth was
shunted and have raped her, and thereafter I have given the noose
on the neck with her frock as a result of which the girl was died. And
E I have taken the girl to the comer of the field and left the field after
keeping the girl in the comer of the field. I have not told anybody
about the incident, this is my confession regarding the offence."

It preceded by routine questions. It was accompanied by a certificate
in usual form.
F
The learned Magistrate examined himself as PW-2. In his deposition he
reproduced the statements of the appellant. In his cross-examination, he
accepted that the confession started at about 11.15 a.m. and was completed
at about 11.30 a.m. He did not remember that on the same day he recorped
G another confession of the appellant in relation to Session Case No. 298 of
2000. He, however, accepted that he had done so when it was brought to his
notice. Recording of that confession was completed at 11.45 a.m. Till then no
legal aid was provided to him.

He did not examine the body of the accused. He asked only the routine
H question as. to whether he was ill-treated by the police. He accepted that the
BABUBHAI UDESINH PARMAR v. ST ATE OF GUJARAT [S.B. SINHA, J.] 407

accused was produced before him under police protection and was also taken A ·
back under the police protection. He stated:

"two things is to be noted in the confession statement regarding
voluntarily and reality. I cannot say that the accused has shown the
reality or not..."
B
Two inconsistencies appeared in Rie prosecution case vis-a-vis the said
purported confession. The evidence of the brother of the deceased
categorically shows that the offence was committed in between 2 a.m. and 4
a.m. The purported confession shows that the offence was committed around
12 O'Clock in the night. The prosecution case proved that not only the
complainant but also other family members were sleeping in the same shed. C
The purport of the confessions goes to show that the deceased was sleeping
alone in the shed.

We do not appreciate as to why oath had to be administered to the
accused while recording confession. Taking of a statement of an accused on D
oath is prohibited. It may or may not be of much significance. But, it may
assume significance when we examine that a purported deposition of accused
was taken on 10.03.2003 wherein also his evidence on oath was recorded in
the following terms:

"I hereby state on oath that:-
E
My Name : Babubhai

My father's name: Udesing Parmar

My age about : 27 years

My occupation : Labour Work
F

Village of Residence : Native Umrav Tadia Pura, at present Karamsad

Question : Have you received copy of documents of police
investigation?
G
Answer: Yes

Question: Is the charge sheet Exh. 4 read over to you, Do you admit
the offence? Or you want to proceed further the judicial proceedings?

Answer : I do not admit the offence.
H
408 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Question: Have you engaged private advocate for your self defence
or you want to engage advocate at the cost of Government?

Answer: I have engaged free advocate."

Ms. Hemantika Wahi, learned counsel appearing on behalf of the State,
B would submit that the provisions of Section 164 of the Code of Criminal
Procedure contains a salutary principle and only in the event the confession
is found to have been voluntarily rendered, the same can be the foundation
for recording a judgment of conviction.

A judicial confession undoubtedly is admissible in evidence. It is a
C relevant fact. A judgment of conviction can also be based on a confession
if it is found to be truthful, deliberate and voluntary and if clearly proved. The
voluntary nature of the confession depends upon whether there was any
threat, inducement or promise and its truth is judged on the basis of the entire
prosecution case. [See Bharat v. State of UP., [1971] 3 SCC 950 and
D Subramania Goundan v. The State of Madras, [1958] SCR 429]

In State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [2005] I I
SCC 600, this Court observed:

"Confessions are considered highly reliable because no rational person
would make admission against his interest unless prompted by his
E conscience to tell the truth. "Deliberate and voluntary confessions of
guilt, if clearly proved are among the most effectual proofs in law".
(vide Taylor's Treatise on the Law of Evidence Vol. I). However, before
acting upon a confession the court must be satisfied that it was freely
and voluntarily made. A confession by hope or promise of advantage,
F reward or immunity or by force or by fear induced by violence or
threats of violence cannot constitute evidence against the maker of
confession. The confession should have been made with full
knowledge of the nature and consequences of the confession. If any
reasonable doubt is entertained by the court that these ingredients

G -
are not satisfied, the court should e'),c.hew the confession from
consideratior1. So also the authority recording the confession - be it
a Magistrate or some other statutory functionary at the pre-trial stage,
must address himself to the issue whether the accused has come
forward to make the confession in an atmosphere free from fear,
duress or hope of some advantage or reward induced by the persons
in authority. Recognizing the stark reality of the accused being
H
.,,
BABUBHAI UDESINH PARMAR v. STATE OF GUJARAT [S.B. SINHA, .I.] 409

enveloped in a state of fear and panic, anxiety and despair while in A
police custody, the Indian Evidence Act has excluded the admissibility
of a confession made to the police officer.

Section 164 ofCr.P.C. is a salutary provision which lays down certain
precautionary rules to be followed by the Magistrate recording a
confession so as to ensure the voluntariness of the confession and B
the accused being placed in a situation free from threat or influence
of the police."

However, it was categorically stated that retracted confession must be
looked upon with greater concern unless the reasons given for having made
it in the first instance are on the face of them false. c
Section 164 provides for safeguards for an accused. The provisions
contained therein are required to be strictly complied with. But, it does not
envisage compliance of the statutory provisions in a routine or mechanical
manner.
D
The court must give sufficient time to an accused to ponder over as to
whether he would make confession or not. The appellant was produced from
judicial custody but he had been in police custody for a period of 16 days.
The learned Magistrate should have taken note of the said fact. It would not
be substantial compliance of law. What would serve the purpose of the
E
provisions contained in Section 164 of the Code of Criminal Procedure are
compliance of spirit of the provisions and not merely the letters of it. What
is necessary to be complied with, is strict compliance of the provisions of
Section 164 of the Code of Criminal Procedure which would mean compliance
of the statutory provisions in letter and spirit. We do not appreciate the
manner in which the confession was recorded. He was produced at 11.15 a.m. F
The first confession was recorded in 15 minutes time which included the
questions which were required to be put to the appellant by the learned
Magistrate for arriving at its satisfaction that the confession was voluntary
in nature, truthful and free from threat, coercion or undue influence. It is a
matter of some concern that he started recording the confession of the
appellant in the second case soon thereafter. Both the cases involved serious
G
offences. They resulted in the extreme penalty. The learned Magistrate,
therefore, should have allowed some more time to the appellant to make his
statement. He should have satisfied himself as regards the voluntariness and
truthfulness of the confession of the appellant.
H
•
410 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A In Devendra Prasad Tiwari v. State of U.P. AIR (1978) SC 1544, this
Court opined:

" ... .It is also true that before a confessional statement made under
Section 164 of the Code of Criminal Procedure can be acted upon, it
must be shown to be voluntary and free from police influence and that
B the confessional statement made by the appelant in the instant case
cannot be taken into "account, as it suffers from serious infirmities in
that (I) there is no contemporaneous 1ecord to show that the appellant
was actually kept in jail as ordered on Sept. 6, 1974 by Shri R.P. Singh,
Judicial Magistrale, Gorakhpur, (2) Shri R.P. Singh who recorded the

c so called confessional statement of the appellant did not question him
as to why he was making the confession and (3) there is also nothing
in the statement of the said Magistrate to show that he told the
appellant that he would not be remanded to the police lock up even
if he did not confess his guilt..."

D [See also Kashmira Singh v. State of Madhya Pradesh AIR (1952) SC
159]

In Parmananda Pegu v. State ofAssam [AIR (2004) SC 4197], this Court
opined:

E "The foremost amongst the factors that are sought to be relied upon
by the prosecution is the retracted confession of the appellant recorded
under Section 164 Cr.P.C. The confession has been extracted supra in
verbatim. Before acting on a confession made before a Judicial
Magistrate in terms of Section 164, the Court must be satisfied first
that the procedural requirements laid down in Sub-sections (2) to (4)
F are complied with. These are salutary safeguards to ensure that the
confession is made voluntarily by the accused after being apprised of
the implications of making such confession. Looking at the
confessional statement (Ext.8) coupled with the evidence of PW 22,
the then Addi. Chief Judicial Magistrate, Dhemaji, we have no doubt
in our mind that the procedural requirements have been fulfilled. Inter
G
alia, PW 22 deposed that after cautioning the accused that the
confessional statement, if made, will be used in evidence against
them, he gave three hours time for reflection during which the accused
were kept in a room attached to the Court in the immediate presence
of an office peon. PW22 further stated that it appeared to him that the
H
BABUBHAI UDESINHPARMAR v. STATE OF GUJARAT [S.B. SINHA, J.] 411

accused made the statement voluntarily. A memorandum as required A
by Sub-section (4) was also recorded. Thus the first requirement for
acting on a confession is satisfied but that is not the end of the
matter. The Court, called upon to consider the evidence against the
accused, should still see whether there are any circumstances appearing
from the record which may cast a doubt on the voluntary nature of
the confession. The endeavor of the Court should be to apply its mind B
to the question whether the accused was free from threat, duress or
inducement at the time of making the confession. In doing so, the
Court should bear in mind, the principle enunciated in Pyare Lal v.
State. of Rajasthan [1963) Suppl. I SCR 689, that under Section 24 of
the Evidence Act, a stringent rule of proof as to the existence of C
threat, duress or inducement should not be applied and a prima facie
opinion based on evidence and circumstances may be adopted as the
standard laid down. To put it in other words, "on the 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." D
17. Having thus reached a finding as to voluntary nature of a
confession, the truth of the confession should then be tested by the
Court. The fact that the confession has been made voluntarily, free
from threat and inducement, can be regarded as presumptive evidence
of its truth. Still, there may be circumstances to indicate that the E
confession cannot be true wholly or partly in which case it loses much
of its evidentiary value.

18. In order to be assured of the truth of confession, this Court, in
a series of decisions, has evolved a rule of prudence that the Court F
should look to corroboration from other evidence. However, there
need not be corroboration in respect of each and every material
particular. Broadly, there should be corroborated so that the confession
taken as a whole fits into the facts proved by other evidence. In
substance, the Court should have assurance from all angles that the
retracted confession was, in fact, voluntary and it must have been G
true ... "

We must also notice that there was no direction to provide free legal
aid to the appellant. He had no opportunity to have independent advice. We
may, however, hasten to add that it does not mean that such legal assistance
must be provided in each and every case but in a case of this nature where H
412 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A the appellant is said to have confessed in a large number of cases at the same
. time, the State could not have denied legal aid to him for a period of three
years.

There is another aspect of the matter which must be taken into
consideration. The same being the manner in which the case has been dealt
B with by the courts below.

The judgment of the learned Trial Judge gives an impression that he
had proceeded on the basis that the appellant is guilty of commission of crime
in large number of crimes. The High Court although taken note of the
C propositions of law, while pointing out the corroborative pieces of evidence,
repeated only the evidences brought on records which proved the commission
of offence. The purported corroborative evidence brought on record by the
prosecution and as noticed by the High Court did not indicate that the
appellant was guilty of commission of the offence. The circumstances were
not such which formed links in the chain and point out only to the guilt to
D the accused and accused alone.

We, therefore, with respect, are constrained to record disagreement with
the ultimate findings of the learned Sessions Judge as also the High Court.
We, however, may observe that we have only considered the merit of the
present appeal. Each case against the appellant must be judged on the basis
E of the legal evidence brought on records. Our observations, we are sure,
would not influence the learned Judges dealing with other cases involving the
appellant and pending before them.

The judgment of conviction and sentence is set aside and the appeal
is allowed.
F
S.K.S. Appeal allowed.