TULSI SINGHversusSTATE OF PUNJAB

A                                 TULSI SINGH
                                       v.
                                STATE OF PUNJAB

                                   AUGUST 7, 1996

B               [M.K. MUKHERJEE AND S.P. KURDUKAR, .LI.]

          Indian Penal Code, 1860:

          S.30~Murde,-Tria/ by Special Cowt-Trial Cowt rxordi11g co11vic-
C lion on the basis of co11fessio11 of accused and medical evide11ce-Held,
    confession not having been recorded in consonance lVith tile requirenzents of
    s.164(2) Cr. P. C,Special Cowt was 11ot justified i11 ente1tai11i11g the confession
    as a vo/unta1y 01u.~onviction and sentence recorded against accused set
    aside.

D          Code of C!iminal Procedure, 1973 :

        S.164(2) and (4}-Confessio1t-Convictio11 by trial Cowt based on-No
  indication in the confession recorded by Judicial Magistrate that it was
  recorded by him after being satisfied that the accused was making a voluntary
  statement and he gave the accused tire requisite caution-Held these are basic
E pre-requisites for recording a confession and a nzere endorse111ent in accord-
  ance with sub-section (4) after recording it would not fulfil requirements of
  sub-section (2)-Since none of tire two requirements of s.164(2) has been
  complied with, tJial cowt was not at all justified in entc1taini11g tire confession
     as a voluntary one and recording conviction in absence of any other ill-
F crinzinating evidence against the accused.
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
     589 of 1986.

          From the Judgment and Order dated 30.1.85 of the Special Court at
G    Ferozepur in Case No. 64/84 T.No. 18/85 and F.l.R. No. 151 of 1984.

           O.P. Khullar and R.C. Kohli for the Appellant.

           H.M. Singh for R.S. Suri for the Respondent.

H          The following Order of the Court was delivered :
                                       340
                             TULSISINGHv. STATE                             341

          Tulsi Singh, the appellant before us, was arraigned before the Special A
    Court, Ferozepur for the murder of his wife Chhinder Kaur. The trial
    ended in an order of conviction and sentence recorded against the appel-
    lant under Section 302 !PC and aggrieved thereby he has filed the instant
•   appeal.

          In absence of any eye witness to the murder, the prosecution rested      B
    its case upon the confession made by the appellant before a Judicial
    Magistrate and the evidence of the doctor who held post mortem examina-
    tion upon the deceased and opined that her death was homicidal.

          From the impugned judgment we find that the appellant did not
    dispute the fact that his wife met with an homicidal death. He, however,
                                                                                   c
    contained that he was not responsible for the murder, nor did he make any
    voluntary confession in respect thereof as alleged by the prosecution. The
    Special Court, however, found the confession made by the appellant to be
    voluntary and true and relying solely thereupon convicted the appeliapt.
                                                                                   D
         The only point that has been urged on behalf of the appellant in
    support of this appeal is that the Special Court was not justified in
    entertaining the confession as evidence - much less relying upon the same
    - as it was not recorded in accordance with the provisions of Section 164
    Cr.P.C. In elaborating this contention is has been submitted that before
                                                                                   E
    recording the confession Shri 0.P. Garg (PW 1), the learned Magistrate,
    did not explain to the appellant that he was not hound to make confession
    and that if he did so it might be used against him nor did he put any
    question to him to satisfy himself that the confession was being voluntarily
    made, as required under sub-section (2) of Section 164 Cr.P.C.
                                                                                   F
           To ascertain whether the above contention is borne by the record or
    not we have carefully looked into the evidence of the Magistrate as also
    the confession (Ext. P/6). On perusal thereof, we find that after his arrest
    the appellant was produced before the Magistrate on June 16, 1984 and
    sent to police custody for a week on the prayer of the Investigating Officer. G
    He was thereafter produced before the Magistrate on June 22, 1984 when
    he volunteered to make a confession. The Magistrate remanded him to
    judicial custody with a direction that he be produced on the following date,
    that is, on June 23, 1984. It appears that immediately after he was produced
    on that day the learned Magistrate recorded his confession. Though the
    learned Magistrate testified that before recording the confession he satis- H
    342                  SUPREME COURT REPORTS [1996) SUPP. 4 S.C.R.

A   fied himself that the accused (appellant) was making a voluntary statement
    and that after giving due caution he recorded it, the confession does not
    anywhere indicate as to whether before recording the same he gave him
    the requisite caution and put questions to satisfy himself that it was being
    made voluntarily. These are the basic pre-requisites for recording a con-      •
    fession under sub-section (2) of Section 164 Cr.P.C. and a mere endorse-
B   ment in accordance with sub-section (4) after recording it would not fulfil
    the requirements of the former sub-section. Since none of the two require-
    ments of Section 164 (2) Cr.P.C. has been complied with we are left with
    no other alternative to hold that the Special Court was not at all justified
    in entertaining the confession a<; a voluntary one. Once the confession is
C   left out of consideration - as it has got to be -the impugned conviction
     cannot be sustained in ahsence of any other incriminating evidence against
    the appellant.

          In the result, we allow this appeal, set aside the conVIctton and
    sentence recorded against the appellant. The appellant, who is on bail, is
D   discharged from his bail bonds.

    R.P.                                                       Appeal allowed.