2004 (9) TMI 649 - SC - Indian Laws

Whether the alleged confession made by the appellant before the Executive Magistrate and other witnesses namely PWs 25 26 & 28 in the course of recreating the crime scenario could be given any weight?

Issues Involved:
1. Last seen evidence.
2. Recovery of the silver chain.
3. Absconding of co-accused.
4. Confessional statements.
5. Extra-judicial confession.
6. Recovery of the dead body.
7. Medical evidence.

Detailed Analysis:

1. Last Seen Evidence:
The High Court relied on the last seen evidence as a significant circumstance. However, there was no evidence that the victim boys were in the company of the appellant on the evening of 28.6.1999. PWs 1 to 3 stated that it was Jitu Pegu who coaxed the boys and detained them, with no mention of the appellant. Therefore, the last seen evidence did not implicate the appellant.

2. Recovery of the Silver Chain:
The recovery of the silver chain of Robindra was at the instance of Jitu Pegu, not the appellant. The seizure list (Ex.1) and testimonies of PWs 4 and 6 confirmed that the chain was found and seized at the place shown by Jitu Pegu. Thus, this circumstance did not implicate the appellant.

3. Absconding of Co-Accused:
The third circumstance of absconding applied only to Jitu Pegu, who fled to Majuli after the incident. This did not apply to the appellant.

4. Confessional Statements:
The High Court considered the confessional statements of the accused. However, the appellant retracted his confession, claiming it was not voluntary and was made under duress. The procedural requirements for recording the confession under Section 164 Cr.P.C. were met, but the Court needed to ensure the voluntary nature of the confession. The confession was inconsistent with the medical evidence, which indicated the cause of death was a head injury, not strangulation as stated in the confession.

5. Extra-Judicial Confession:
The extra-judicial confession involved the accused recreating the crime scene in the presence of an Executive Magistrate and witnesses (PWs 25, 26 & 28). The High Court erroneously assumed there were two extra-judicial confessions. The alleged confession in the presence of the Executive Magistrate and others was not credible. PWs 25, 26, and 28's testimonies were inconsistent, and there was no official record from the Executive Magistrate. The Court found serious doubts about the voluntariness of the confession.

6. Recovery of the Dead Body:
The recovery of Robindra's body was at the instance of Jitu Pegu, not the appellant. Testimonies of PWs 17, 14, 27, 12, and 8 confirmed that Jitu Pegu led the police to the bamboo grove where the body was found. The appellant was not connected to the recovery of the dead body.

7. Medical Evidence:
The medical evidence did not support the prosecution's version of strangulation. The postmortem report indicated the cause of death was a head injury, contradicting the appellant's confessional statement. This inconsistency cast doubt on the truth of the confession.

Conclusion:
The High Court's reliance on various circumstances to implicate the appellant was flawed. The last seen evidence, recovery of the silver chain, and absconding of co-accused did not implicate the appellant. The confessional statement was retracted and inconsistent with medical evidence. The extra-judicial confession lacked credibility. The recovery of the dead body was solely at the instance of Jitu Pegu. The medical evidence contradicted the appellant's confession. Therefore, the conviction under Sections 302 and 365 IPC was set aside, and the appellant was ordered to be released unless required in another case.

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