Requisition for recording the statement under Section 164 Cr.P.C., is not mandatory

 In our opinion, the said contention cannot be accepted, as it is now well settled that a m sub-section (1) of Section 16requisition for recording the statement under Section 164 Cr.P.C., is not mandatory in all circumstances and it is also not one of the pre-requisite condition to enable the Magistrate to record a statement as could be seen fro4 Cr.P.C. The requisition for recording the Section 164 Cr.P.C., statement may be in addition to the power vested in the Magistrate to record such statement irrespective of a requisition is placed or not.1
This leads us to the next contention of the learned counsel for the appellant/accused placing reliance on the judgment of the Supreme Court in Chandran's case (supra) for the failure on the part of the Judicial Magistrate to certify the statement. That was a case where a statement under Section 164 Cr.P.C., was recorded by the Magistrate when the accused was in police custody. While dealing with the same, the Supreme Court emphasised for such a certificate to be given by the Magistrate. The Supreme Court was not considering a case where the Judicial Magistrate was recording the confessional statement of an accused who was in judicial custody. A line of distinction could be drawn to the recording of confessional statement from an accused who is in police custody or in judicial custody. It can be presumed that when a confessional statement is sought to be recorded at the request of the Investigating Officer from an accused who is in police custody, the Judicial Magistrate will not be restricted only to ensure as to whether the accused gives such a statement voluntarily, but also a further obligation is cast upon the Magistrate to certify the statement as contemplated under sub-section (4) of Section 164 Cr.P.C. The object behind the said provision is only to ensure that the accused was not pressurised or coerced or forced to give such a statement as he was under the custody of the police and when produced for recording the statement under Section 164 Cr.P.C.1

 From the above proceedings, it is seen that the Magistrate had ensured from the accused that he was not forced, coerced, threatened or pressurised to give a confessional statement before him and that such a statement was made voluntarily. This is also fortified by the fact that when the accused was questioned under Section 313 of the Criminal Procedure Code, he himself has admitted that he gave such a statement voluntarily and he has not taken any defence that he was forced to give such a statement.

23. As has been stated earlier, the purpose for a certificate by the Magistrate under sub-section (4) of Section 164 Cr.P.C., is only to ensure as to whether the accused was giving the confessional statement voluntarily or not. A mere failure on the part of the Magistrate to certify in terms of sub-section (4) of Section 164 Cr.P.C., in a case where the accused was produced from judicial custody and not from police custody may be only a procedural defect, which may not affect the evidentiary value of the confessional statement as such.1

Madras High Court

Dharumiah @ Dharumaiyan vs State Rep.By on 8 January, 2008

Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 31.3.2003 made in S.C.No.48 of 2003 on the file of the learned Principal Sessions Judge, Nagapattinam. For Appellant :: Mr.Kumar for

Mr.T.Muruganantham

For Respondent :: Mr.P.Kumaresan

Addl. Public Prosecutor

JUDGMENT

(Judgment of the Court was delivered by D.MURUGESAN, J.)

The appellant is the sole accused, who stands convicted for the offence under Section 302 IPC(2 counts) and sentenced to undergo life imprisonment for each count, which was ordered to run concurrently, by the judgment dated 31.3.2003 passed by the learned Principal Sessions Judge, Nagapattinam in S.C.No.48 of 2003. No fine amount was imposed taking into consideration the poverty of the appellant/accused as well his continuous confinement.

2. The facts in brief are as follows:-

It is a case of double murder. The accused is the husband of both the deceased. The accused and his wives are downtrodden and were living below the poverty line. Due to some misunderstanding, during the relevant point of time, the accused was not living with the deceased. When the accused wanted to dispose of his land, he approached the Village Administrative Officer, P.W.1 for Chitta. On knowing the motive of the accused, both the deceased approached P.W.1 and requested him not to give Chitta to the accused. As both the deceased had objected to the sale, the accused, on 21.8.2002, went to the house where both the deceased were living with an intention to murder them. He first inflicted indiscriminate cut injuries on his first wife/first deceased who was sleeping in the verandah and thereafter entered into the room and cut his second wife/second deceased indiscriminately on various parts of her body with the Axe, M.O.1. The above occurrence was witnessed by P.W.3, the daughter of the accused through his first wife and P.W.4, the son of the accused through his second wife. The occurrence had taken place at 2.00 p.m., on 21.8.2002. It was informed to the Village Administrative Officer, P.W.1 by the Village Assistant-P.W.2. Immediately P.W.1 went to the scene of occurrence and saw both the deceased lying dead.

3. Thereafter, P.W.1 prepared the complaint, Ex.P-1 and went to Kariyapattinam Police Station and lodged the complaint before P.W.9, the Sub Inspector of Police, which was registered in Cr.No.241 of 2002 for the offence under Section 302 IPC. The printed First Information Report is Ex.P-14. He forwarded the express reports to the Court as well as to the higher police officials.

4. P.W.12, the Inspector of Police attached to Vaimedu Police Station and in-charge of Kariyapattinam Police Station, took up investigation of the case on 21.8.2002 at 2.45 p.m., after the receipt of the First Information Report. He proceeded to the scene village at about 3.30 p.m., on the same day and prepared the Observation Mahazar, Ex.P-2 and also drew rough sketch, Ex.P-16 in the presence of P.W.5 and another witness. He recovered the bloodstained earth, M.O.5 and sample earth, M.O.6 found near the body of the first deceased and the bloodstained earth, M.O.7 and the sample earth, M.O.8 found near the body of the second deceased under the mahazar, Ex.P-4. He conducted inquest on the body of the first deceased between 5.30 p.m., and 7.00 p.m., in the presence of panchayatdars and witnesses and prepared the inquest report, Ex.P-17. He conducted inquest on the body of the second deceased between 7.15 p.m., and 8.45 p.m., in the presence of panchayatdars and witnesses and prepared the inquest report, Ex.P-18. He thereafter sent the bodies of the deceased to Vedaranyam Government Hospital through P.W.10, Head Constable along with the requisitions, Exs.P-8 & P-9 for conducting post-mortem. He examined P.Ws.3,4 and other witnesses and recorded their statements on the same day.

5. P.W.7, Civil Assistant Surgeon attached to Government Hospital, Vedaranyam commenced post-mortem on the body of the first deceased at 10.00 a.m., on 22.8.2002 and he noted the following injuries:- "(1) A lacerated injury in the right temporal region of size 5x2x4 cm.

(2) A lacerated injury in the right supra and infraclavicular region of size 8x6x6 cm exposing the collar bone.

(3) A ragged lacerated injury in the right side of neck extending upto the right ear of size 13x7x10 cm. Exploration of this injury showed the wound cutting through the carotid artery, the vertebral column at the level C3 eventually severing the spinal cord. (4) A lacerated injury in the right mastoid region cutting through the earlobe 8x3x2 cm.

(5) A vertical laceration in the right parietal region 3x2x3 cm.

(6) A vertical laceration in the right fronto parietal region 5x2x2 cm.

(7) A lacerated injury in the right side of the forehead close to hair line 4x2x0.5 cm.

(8) A lacerated injury in the left temporal region 6x2x2.5 cm.

(9) A large lacerated injury over the right shoulder blade 12x4x3 cm.

(10) A large ragged laceration on the nape placed diagonally towards the right shoulder blade 14x7x5 cm."

He issued the post-mortem certificate, Ex.P-10 with his opinion that the first deceased would appear to have died of massive haemorrhage and shock resulting from damage to vital structures-the right carotid artery and spinal cord and the death would have occurred 24 to 32 hours prior to post-mortem.

6. P.W.7, Civil Assistant Surgeon attached to Government Hospital, Vedaranyam commenced post-mortem on the body of the second deceased at 11.30 a.m., on 22.8.2002 and he noted the following injuries:- "(1) A lacerated injury at the left supraclavicular region 6x3x5 cm.

(2) A cut injury 2 cm above and parallel to injury no.1 of size 7x1x1 cm.

(3) A cut injury 1cm above and parallel to injury no.2 of size 5x1x1 cm.

(4) A large lacerated injury starting from the left side of the head extending to 2/3 of the entire circumference of the neck just below the level of lower jaw of size 17x7 cm cutting through the left carotid artery, vertebra of the neck and spinal cord at the vertebral level C3. (5) A 'L' shaped lacerated injury at the back of the head 10x5x2 cm.

(6) A laceration on the right tempero parietal region of size 6x3x1 cm cutting through the earlobe.

(7) A vertical injury in front of the right ear 8x2x2 cm.

(8) A horizontal laceration above injury no.5 of size 5x2x2 cm chiseling out the skullbone.

(9) A crescent shaped laceration on the vertex of the head 4x2x1.5 cm.

(10) A spiral laceration in the middle portion of the right index finger cutting through the middle phalanx 4 cm in length."

He issued the post-mortem certificate, Ex.P-11 with his opinion that the second deceased would appear to have died of massive haemorrhage and shock as a result of damage to vital structures-the left carotid artery and the spinal cord and the death would have occurred 24 to 32 hours prior to post-mortem.

7. P.W.12, continuing with his investigation, arrested the accused at 1.00 p.m., on 22.8.2002 in the police station while he was produced by the Village Administrative Officer, P.W.1 and the Village Assistant, P.W.2 along with the complaint, Ex.P-1. In pursuance of the admissible portion of his confession under Ex.P-6, he recovered the Axe, M.O.1 from the house of the accused in the presence of P.Ws.1 & 2 under the mahazar, Ex.P-7. Thereafter, he remanded the accused to judicial custody. He examined the other witnesses and recorded their statements. He sent the seized material objects to the Court. He examined P.Ws.7,9,10,11 and the photographer and recorded their statements. He sent requisition under Ex.P-12 to the Judicial Magistrate, Tiruvarur on 26.8.2002 for recording the Section 164 Cr.P.C., statement of the accused and such a statement was recorded by the Judicial Magistrate, Tiruvarur on 12.9.2002 and 13.9.2002. He received the Chemical analyst's report under Ex.P-21 and the Serologist's report under Ex.P-22 on 22.10.2002 and 31.12.2002. He handed over the investigation to the incumbent Investigating Officer.

8. P.W.13, took charge as Inspector of Police of Kariyapattinam Police Station on 15.11.2002 and after scrutinising the file and the investigation carried out by his predecessor, laid the final report against the accused on 27.11.2002 before the Court.

9. To bring home the charges against the accused, the prosecution examined 13 witnesses, marked 22 exhibits and produced 9 material objects.

10. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied them as false. No witness was examined and no document was marked on the side of the defence. On the basis of the materials available on record, the learned trial Judge found the accused guilty, convicted and sentenced him for the offence as stated above.

11. Mr.Kumar, learned counsel for the appellant/accused has submitted that the presence of P.Ws.3 & 4, who are the eye-witnesses, in the scene of occurrence is highly doubtful. In support of the same, the learned counsel would submit that both P.Ws.3 & 4 have spoken about the presence of P.W.2 in the scene village after the occurrence had taken place. On the other hand, the evidence of P.W.2 is silent, as he has not spoken anything about the presence of P.Ws.3 & 4. It is the categorical evidence of P.W.3 that after the occurrence, the accused ran away from the scene place leaving the Axe, M.O.1 and at about 4.00 p.m., the police took away the Axe after conducting inquest. On the other hand, the evidence of P.W.4 is that the Axe was seized at 2.00 p.m., on the next day when the same was produced by the accused. There is a serious contradiction as to the recovery. Hence the presence of P.Ws.3 & 4 is highly doubtful and consequently, their evidence inspires no credibility. The learned counsel would also submit that the Judicial Magistrate, Tiruvarur-P.W.8, who recorded the confessional statement of the accused under Section 164 Cr.P.C., has not followed the mandatory procedure of certifying the confessional statement, Ex.P-13 as contemplated under sub-section (4) of Section 164 Cr.P.C., and there was also no occasion for the Investigating Officer, P.W.12 to file an affidavit before the Magistrate as if the accused had expressed his willingness to give the confessional statement, when admittedly the accused was in judicial custody. In the absence of such certificate, no reliance can be placed on the confessional statement. In support of the said submission, the learned counsel relied upon a judgment of the Supreme Court in Chandran v. The State of Madras (AIR 1978 SC 1574).

12. Per contra, Mr.P.Kumaresan, learned Additional Public Prosecutor has submitted that the evidence of P.Ws.3 & 4 as to their presence in the scene of occurrence is trustworthy, especially when P.W.3 happened to be the daughter of the accused through the first deceased and P.W.4 happened to be the son of the accused through the second deceased, and they will not specifically depose against their father. Except the minor contradiction as to the recovery of M.O.1, their evidence is consistent in all other aspects including the commission of the offence by the accused. He would also submit that the injuries as spoken to by P.Ws.3 & 4 on the two deceased are corroborated by the medical evidence, as could be seen from the post-mortem certificates, Exs.P-10 & P-11. He would further submit that inasmuch as the Judicial Magistrate, Tiruvarur has satisfied himself as to the accused having given the voluntary confession, Ex.P-13 while he put questions to the accused, merely because he has not certified the said confessional statement, that will not be a ground to reject the very confessional statement itself.

13. We have given our anxious and careful consideration to the rival submissions. So far as the contention of the learned counsel for appellant/accused as to the presence of P.Ws.3 & 4 in the scene of occurrence is concerned, it is to be borne in mind that P.W.3 is living in a nearby village called as Aayakkaranpulam and on the fateful day and time, she came to Shenbagarayanallur, the scene village, and while she came near the railway gate, she saw P.W.4 and her son Veerajothi standing there. Thereafter, when all the three reached the house, they found the accused cutting the first deceased on her neck and all over the body and thereafter he went inside the room and cut the second deceased as well and inflicted injuries all over her body. This version of P.W.3 is spoken to by P.W.4 as well. Their evidence is also corroborated by the evidence of P.W.2, while he has spoken that as soon as he was informed by the villagers that the accused had murdered both his wives, he immediately rushed to his immediate superior officer namely, the Village Administrative Officer-P.W.1 and informed the occurrence to him. The conduct of P.W.2 in intimating the occurrence to his immediate superior officer is quite natural as he is the Village Assistant working under P.W.1. The evidence of P.W.2 is also supported and corroborated by P.W.1, while he has spoken that he was informed by P.W.2 as to the occurrence in which the accused had committed the murder of his two wives. On receipt of such information, he went to the scene place and saw both the bodies of the deceased there. The evidence of P.W.1 corroborates the evidence of P.Ws.3 & 4 as to the commission of the offence by the accused. Therefore, the contention of the learned counsel for the appellant/accused that the presence of P.Ws.3 & 4 is highly doubtful cannot be accepted, as their presence in the scene village has amply been proved by the prosecution. Further, as rightly pointed out by the learned Additional Public Prosecutor, both P.Ws.3 & 4 are none other than the daughter and son of the accused and in the absence of any motive is suggested against them to depose against their father, we have no reason to discard their evidence.

14. The evidence of P.Ws.3 & 4 is also corroborated by the evidence of the post-mortem doctor-P.W.7 who has found injuries on the neck and all over the body of both the deceased as spoken to by P.Ws.3 & 4. He has also opined that the cause of death is also due to the fatal injuries on the necks of both the deceased. In these circumstances, we find no merit in the contention of the learned counsel for the appellant/accused as to the innocence of the accused in the offence.

15. The prosecution has also relied upon the judicial confession, Ex.P-13 recorded by P.W.8, the Judicial Magistrate, Tiruvarur to prove its case. The learned trial Judge has relied upon the said confession as well to sustain the conviction of the accused. It is argued that the said judicial confession is bad in law and cannot be relied upon in the wake of failure on the part of the Judicial Magistrate to certify the same as provided under sub-section (4) of Section 164 Cr.P.C., and there was also no occasion for the Investigating Officer to file an affidavit before the Magistrate as if the accused had expressed his willingness to give such voluntary confession, when admittedly the accused was in judicial custody. Section 164 of the Criminal Procedure Code, 1973 reads as follows:- "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 no confession shall be recorded by a police officer on whom any power of a Magistrate has been 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."

16. The purport of the confessional statement recorded by the Magistrate under Section 164 Cr.P.C., came to be considered by the Supreme Court in the judgment in Jogendra Nahak and others v. State of Orissa and others (2000 SCC (Crl.) 210. After referring to the provisions under Sections 154 to 160, 165 to 173 and particularly, Section 164, the Supreme Court has observed that a Magistrate is empowered to record the statement of a person not sponsored by the investigating agency even during the course of investigation. A plain reading of sub-section (1) of Section 164 Cr.P.C., shows that 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 investigation. Such power can be exercised independent of any requisition made by the Investigating Officer. In fact the question as to whether a requisition is necessary from the Investigating Officer to record the statement of the accused under Section 164 Cr.P.C., came up for consideration before a learned single Judge of this Court in the judgment in C.W.Casse, Re (AIR 1948 Mad 489), where it was observed as follows:- "It is not necessary that the Magistrate should be moved by the police in order that he might record a statement. There may be instances where the police may not desire to have recorded the statement of a witness for some reason or other. In such a case, there is nothing preventing the witness to go to the Magistrate and request him to record the statement and if a Magistrate records his statement and transmits the same to the court where the enquiry or the trial is to go on, there is nothing wrong in his action." However, after the above expression, the learned single Judge has also sounded the following note of caution:

"But such a thing will be very exceptional, as there is always a discretion in the Magistrate to refuse to record the statement. Ordinarily, when a police officer requests the Magistrate to record the statement of a witness on oath under Section 164 Cr.P.C., such a request will not be refused by the Magistrate. But when a private party seeks to invoke the powers of a Magistrate under Section 164 Cr.P.C., the Magistrate has got a very wide discretion in acting or refusing to act." The above judgment was quoted with approval by the Supreme Court in the judgment in Jogindra Nahak case (supra).

17. In this background of the law settled by the Supreme Court, the contention of the learned counsel for appellant/accused that when the accused was in judicial custody, there was no occasion for the Investigating Officer to ascertain the willingness of the accused to give a voluntary statement as sworn to by him in the affidavit, Ex.P-12 and if the said affidavit is disbelieved, there was no occasion for the Magistrate to record the Section 164 Cr.P.C., statement from the accused and therefore the statement recorded under Section 164 Cr.P.C., also should be discarded, is to be considered. In our opinion, the said contention cannot be accepted, as it is now well settled that a requisition for recording the statement under Section 164 Cr.P.C., is not mandatory in all circumstances and it is also not one of the pre-requisite condition to enable the Magistrate to record a statement as could be seen from sub-section (1) of Section 164 Cr.P.C. The requisition for recording the Section 164 Cr.P.C., statement may be in addition to the power vested in the Magistrate to record such statement irrespective of a requisition is placed or not.

18. This leads us to the next contention of the learned counsel for the appellant/accused placing reliance on the judgment of the Supreme Court in Chandran's case (supra) for the failure on the part of the Judicial Magistrate to certify the statement. That was a case where a statement under Section 164 Cr.P.C., was recorded by the Magistrate when the accused was in police custody. While dealing with the same, the Supreme Court emphasised for such a certificate to be given by the Magistrate. The Supreme Court was not considering a case where the Judicial Magistrate was recording the confessional statement of an accused who was in judicial custody. A line of distinction could be drawn to the recording of confessional statement from an accused who is in police custody or in judicial custody. It can be presumed that when a confessional statement is sought to be recorded at the request of the Investigating Officer from an accused who is in police custody, the Judicial Magistrate will not be restricted only to ensure as to whether the accused gives such a statement voluntarily, but also a further obligation is cast upon the Magistrate to certify the statement as contemplated under sub-section (4) of Section 164 Cr.P.C. The object behind the said provision is only to ensure that the accused was not pressurised or coerced or forced to give such a statement as he was under the custody of the police and when produced for recording the statement under Section 164 Cr.P.C.

19. However, the issue as to whether such a certificate is mandatory when the accused was in judicial custody and he intends to give a statement should be considered. In fact in the very judgment referred to by the learned counsel for the appellant/accused in Chandran's case (supra), it has been held as follows:- "To say that the accused was in a position or mood to give a voluntary statement, falls far short of vouching that upon questioning the accused, he (Magistrate) had "reason to believe that the confession is being voluntarily made", which under S.164 is a sine qua non for the exercise of jurisdiction to record the confession. But that section does not make it obligatory for the Magistrate to append at the end of the record of the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If, the Magistrate recording a confession of an accused person produced before him in the course of police investigation, does not, on the face of the record, certify in clear, categorical terms his satisfaction of belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial."

20. In the given case, the appellant/accused was arrested on 22.8.2002 and he was remanded to judicial custody on the same day. Admittedly, an affidavit dated 26.8.2002 was filed by P.W.12, the Investigating Officer stating that the accused was willing to give a confessional statement under Section 164 Cr.P.C. The accused appeared before P.W.8, the Judicial Magistrate, Tiruvarur on 12.9.2002, on which date the accused was informed by the Magistrate and the said proceedings are as follows:- "1/ nf/ c';fs; bgah; vd;d>

g/ jUikad;/

2/ nf/ c';fs; jfg;gdhh; bgah; vd;d>

g/ Kdpad; vd;fpw tPug;gf; ft[z;lh/

3/ nf/ c'fs; taJ vd;d>

g/ 60 taR/

4/ nf/ c';fs; KG tpyhrk; vd;d >

g/ brz;guhaey;Y}h; fpuhkk;. Ntjhuz;ak; jhYf;fh. ehfg;gl;odk; khtl;lk;/

5/ nf/ ve;j nghyPrhh; c';fs; kPJ tHf;F gjpt[ bra;Js;shh;fs;>

g/ fupahg;gl;ozk; fhty; epiyaj;jpdh/

6/ nf/ c';fs; kPJ vd;d tHf;F gjpt[ bra;ag;gl;Ls;sJ vd;W bjhptpj;jhh;fsh>

g/ bfhiy tHf;F/

7/ nf/ ve;j njjpapy; ve;j ,lj;jpy; itj;J c';fis ifJ bra;jhh;fs;>

g/ ehnd brd;W !;nlc&dpy; ruzile;njd;/ fhpahg;gl;ozk; nghyP!; !;nlc&d;/

8/ nf/ eP';fs; Fw;wj;ij xg;g[f;bfhz;L xg;g[jy; thf;FK:yk; bfhLg;gjhf nghyPrhhplk; bjhptpj;jPh;fsh>

g/ brhy;ytpy;iy/ ehnd thf;FK:yk; bfhLf;fpnwd;/ ifbaGj;J th';fpdhh;fs;/

9/ nf/ mt;thW xg;g[jy; thf;FK:yk; bfhLj;jhy; nkw;go thf;FK:yj;jpy; c';fSf;F vjpuhf nghyPrhh; gad;gLj;Jthh;fs; vd;gij bjhpe;J bfhz;Ouh>

g/ bjhpa[k;/

10/ nf/ xg;g[jy; thf;FK:yk; bfhLf;f c';fSf;F tpUg;gk; cs;sjh,e;ePjpkd;wj;jpy;>

g/ tpUg;gk; cs;sJ/ thf;FK:yk; bfhLf;fpnwd;/

vjphpaplk; nkw;Tw[pa nfs;tpfs; nfl;L mjw;Fhpa gjpy;fs; bgwg;gl;lJ/ vjphp jhd; Fw;w xg;g[jy; thf;FK:yk; bfhLf;f tpUg;gk; cs;sjhf bjhptpj;jhh;/ mt;thW thf;FK:yk; bfhLj;jhy; mtUf;F vjpuhf nkw;go thf;FK:yk; gad;gLj;jg;gLk; vd;W vLj;J Twpa[k;. mtUf;F xU ehs; mtfhrk; bfhLf;f ntz;Lk; vd;gjhy; mtiu ed;F Mnyhrid bra;J kWehs; thf;FK:yk; bfhLf;f tpUk;gpdhy; bfhLf;fyhk; vd;W bjhptpj;J jpUthU:h; fpisr; rpiwr;rhiyapy; mtiu ePjpkd;w fhtypy; itf;f cj;jutpl;Lk;. 13/9/2002 md;W khiy 5/00 kzpf;F ,e;ePjpkd;wj;jpy; M$h;gLj;JkhWk; cj;jutplg;gLfpwJ/"

21. From the above, it is seen that the Magistrate had ensured from the accused about his willingness to give a confessional statement on his own and voluntarily. On the next day, when the accused was produced, once again the Magistrate ensured from the accused about the willingness to give a confessional statement voluntarily and the said proceedings are as follows:- "vjphp ,d;W 13/9/02 gpw;gfy; 5/15 kzpf;F vd; Kd; m$h;gLj;jg;gl;lhh;/ mYtyf cjtp vGj;jh; j/fiyr;bry;tp. mYtyf cjtpahsh; k/fhkuh$; Mfpnahh; kl;Lk; ePjpkd;w cwhypy; cldpUf;f cwhypd; miwf;fjt[fs;. rd;dy;fs; milf;fg;gl;ld/ ntW ahUk; cwhypy; ,y;iy/ gpd;dh; M$h;gLj;jg;gl;l jUikad;. jfg;gdhh; bgah; Kdpad; vd;fpw tPug;gf; ft[z;lh; vd;w M$h; vjphpaplk; fPH;f;fz;l nfs;tpfs; nfl;fg;gl;lJ/ nf/ c';fSf;F thf;FK:yk; bfhLf;f tpUg;gkh>

g/ tpUg;gk;jhd;/

nf/ thf;FK:yk; mspf;FkhW ahUk; fl;lhag;gLj;jpdhh;fsh>

g/ ,y;iy/

nf// c';fSf;F vjpuhf thf;FK:yk; gad;gLj;jg;gLk; vd;gij g[hpe;J bfhz;Ljhd; thf;FK:yk; bfhLf;fpd;wPh;fsh>

g/ Mkhk;/ g[hpe;J bfhz;nld;/

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22. From the above proceedings, it is seen that the Magistrate had ensured from the accused that he was not forced, coerced, threatened or pressurised to give a confessional statement before him and that such a statement was made voluntarily. This is also fortified by the fact that when the accused was questioned under Section 313 of the Criminal Procedure Code, he himself has admitted that he gave such a statement voluntarily and he has not taken any defence that he was forced to give such a statement.

23. As has been stated earlier, the purpose for a certificate by the Magistrate under sub-section (4) of Section 164 Cr.P.C., is only to ensure as to whether the accused was giving the confessional statement voluntarily or not. A mere failure on the part of the Magistrate to certify in terms of sub-section (4) of Section 164 Cr.P.C., in a case where the accused was produced from judicial custody and not from police custody may be only a procedural defect, which may not affect the evidentiary value of the confessional statement as such. From the confessional statement, it is also clear that though the accused was produced from judicial custody, the Magistrate had also ensured that none of the police officials concerned with the investigating agency have accompanied the accused and only some other police officials have brought the accused to the Court for recording the confessional statement. Hence we are of the considered view that the confessional statement, Ex.P-13 recorded by the Judicial Magistrate, P.W.8 cannot be discarded for the sole reason that the Magistrate has not certified in the confessional statement as contemplated under sub-section (4) of Section 164 Cr.P.C. To find out as to whether the confessional statement was voluntary or not, it is incumbent on the part of the Court to consider the confessional statement in its entirety and the same cannot be split up for ruling out the possibility of pressure, coercion or threat on the part of the accused to give such a statement. If the proceedings dated 12.9.2002 and 13.9.2002, which culminated into the confessional statement, Ex.P-13, are considered in toto, we have no reason whatsoever either to hold that it was not voluntary or was given under threat or coercion or the failure on the part of the Magistrate to certify the statement would make the confessional statement as not voluntary.

24. As the prosecution has established the occurrence through the evidence of P.Ws.1 & 2 and the evidence of the eye-witnesses namely, P.Ws.3 & 4 as well the medical evidence coupled with the confessional statement, Ex.P-13 of the accused given under Section 164 Cr.P.C., we have no doubt in our mind to hold that the accused is guilty of the offence punishable under Section 302 IPC (2 counts). Hence, we find no merit to interfere with the impugned judgment of the trial Judge and, accordingly, the appeal is dismissed. Index : yes (D.M.,J.) (V.P.K.,J.)

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