Confessional Statement Not Signed Or Proved By Magistrate Who Purportedly Recorded It Can't Be Treated As True U/S 164 CrPC: Gauhati High Court

The Gauhati High Court at Kohima recently set aside a rape and murder conviction on the ground that the trial court convicted and sentenced the accused to undergo life imprisonment solely basing on the unsigned and unproved confessional statement.

The division bench of Justice Sanjay Kumar Medhi and Justice Budi Habung observed,

"The document which has not been signed or proved by the Magistrate, who is purported to have recorded the said confessional statement cannot be treated as the true confessional statement of the accused under the provisions of section 164 of Cr.P.C. As per 164 (4), the confessional statement of the accused person shall be signed by the person making the confession, but in the present case, the accused has not signed the said confessional statement. Non-compliance with provision of section 164 Cr.P.C has caused injury to the accused in his defence on merit and the same cannot be cured at the later stage. In view of the above, we are not in a position to accept the said document to be a true confessional statement of the accused."

It added, “…in the present case, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt for commission of the offences under sections 302 & 376 IPC. Although 5 (five) prosecution witnesses were examined. But they all are official witness and none of them are eye witness. No any circumstantial evidence has also been made out against the accused for commission of the alleged offence.”

The FIR was registered on a written request from one Nuvotso of Kotisu village stating that on May 17, 2003, his wife Smti. Vesazolu (deceased) went to the field and did not return. On search, her dead body was found naked. The trial Court vide judgment and order dated October 01, 2004 convicted the accused-appellant under Sections 302 and 376 of IPC and sentenced him to undergo imprisonment for life. Hence, the accused preferred the present appeal before the High Court.

It was argued that the conviction of the accused was solely based on the so-called confessional statement given by the accused but there was no confession before the Magistrate, as the documents exhibited to be the confessional statement was without the signature of the Magistrate who is stated to have recorded the said confessional statement. Thus, the procedure prescribed under Section 164 of CrPC was not at all followed while recording the said confessional statement.

On the other hand, the Public Prosecutor (PP) submitted that during the investigation period the appellant had admitted his guilt of commission of the alleged offence before the Investigating Officer of the case. It was contended that on such admission, he was forwarded to the Magistrate for recording his confessional statement. Accordingly, the ADC (Judicial), Phek has recorded the confessional statement of the accused wherein the accused had narrated the details of the incident and confessed his guilt stating that he has committed murder of the deceased by strangulating her and thereafter, he had committed sexual intercourse with her dead body.

The Court noted that despite of all efforts made to recover and trace out all the Trial Court's record, the same could not be found out except for few documents viz; the copy of FIR, the so-called confessional statement of the accused and the impugned judgment and order which was collected from the District Jail authority.

It was highlighted by the Court that right from the beginning, the investigation of the case was not done adequately.

“There is no record of the IO visiting the place of occurrence, drawing of sketch map of the crime scene, recovery or seizure of any other incriminating materials and weapon of offence or any materials including blood sample for FSL and expert opinion, there is also no record of the IO making any recovery on the basis of the disclosure statement given by the accused or if made whether it was made while inside the custody or thereafter. Although one naga dao, about 2 ft long is stated to have been produced by one Shri Dunutso GB of Kotisu village. But he said the GB was never examined to ascertain from where he had produced the said dao, nor the said dao was sent for FSL report,” the Court said.

The Court noted that in the instant case, no post-mortem examination was conducted over the dead body of the deceased to ascertain the cause of death of the deceased. Thus, the prosecution has miserably failed to prove its case.

It was observed by the Court that the document which has not been signed or proved by the Magistrate, who is purported to have recorded the said confessional statement cannot be treated as the true confessional statement of the accused under the provisions of Section 164 of CrPC.

The Court remarked that as per the records, after completion of investigation, the accused was not examined under section 313 of CrPC enabling the accused personally to explain any circumstances appearing in the evidence against him, nor his statement was recorded.

“Further, section 235(2) Cr.P.C provides that if the accused is convicted, the Judge shall hear the accused on the questions of sentence, and then pass sentence on him according to law. This is a statutory provision without which failure of justice would occasion thereby. However, in the instant case, there is no record of hearing the accused on the quantum of sentences,” the Court added.

Thus, the Court held that the finding of the trial court is without any substances as it lacks both material and circumstantial evidences to convict the accused for murder and rape and the prosecution has failed to prove the case against the accused beyond reasonable doubt.

Accordingly, the Court set aside the impugned judgment and order of sentence passed by the trial court.

Citation: 2024 LiveLaw (Gau) 34

Case Title: Shri Kedukhoyi v. The State of Nagaland

Case No.: CRL.A(J)/10/2022

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