w w w . L a w y e r S e r v i c e s . i n



Mudderu Raiappa & Others v/s State of Karnataka, Rep by its State Public Prosecutor


Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

    Criminal Revision Petition No. 264 of 2015

    Decided On, 26 March 2015

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE A.S. PACHHAPURE

    For the Petitioners: P.M. Nawaz for Rashmi Jadhav, Advocates. For the Respondent: K. Nageshwarappa, HCGP.



Judgment Text

(Prayer: This Crl.RP is filed under Section 397 r/w 401 Cr.P.C, praying to allow this Crl.Rev.Petition, by setting aside the order Dtd. 28.01.2015 passed in S.C.No.64/2012 by the I Addl.Dist. and Sessions Judge, Davanagere.)

1. An order of the Sessions Judge marking the voluntary statements of the petitioners and admitting them in evidence is challenged in this revision petition.

2. The petitioners herein were arrested for an offence punishable mainly under Section 302 r/w Section 149 of IPC and other minor offences. A charge sheet was presented against them in Sessions Case No.64/2012. While the Trial Court was recording the evidence of PW26 – the Investigating Officer, the voluntary statement of the petitioners were admitted in evidence and all those statements were marked as Exs.P26 to 30. It is this order of the learned Sessions Judge that is questioned in this revision petition.

3. Heard the learned counsel for the petitioners and also learned High Court Government Pleader.

4. A perusal of the voluntary statements produced by the petitioners reveal that on their arrest, PW26 – the Investigating Officer recorded the said statements on 08.12.2012 and 10.03.2012. In the said statements, the petitioners said to have confessed commission of the murder, narrated the part played by each of them in causing death and the weapon used etc., and their abscondance from the place of incident. Any how scrutiny of all these voluntary statements does not reveal any discovery in pursuance of the facts disclosed.

5. The learned Sessions Judge has referred to the decision of the Apex Court reported in (2013) 4 Crimes SC 148. But the names of the parties in the decision cited is not mentioned in the said order. Whenever the judgments of the Higher Courts are referred to by the counsel, it appears proper to state the names of the parties and also the law journal in which it is reported, to enable the Court to search it for reference.

6. At the first instance, it would be proper to refer to the provisions of Section 25 of the Indian Evidence Act, 1872. Relevant portion is extracted hereunder for the sake of convenience.

'Section 25: Confession to police officer not to be proved: No confession made to a police officer, shall be proved as against a person accused of any offence.'

The aforesaid provision makes an exception to the admissibility of the admissions and confessions in respect of the crime committed. If the accused is in police custody and a confession is recorded, such a confession cannot be proved as against the person accused of such an offence and it incorporates the principle underlying in article 20(3) of the Indian Constitution.

7. The provisions of Section 26 of the Indian Evidence Act, 1872 relate to a confession made by an accused while he is in custody, not to a police officer but to any other person. Therefore, even if a confession is made by an accused while he is in police custody to a person other than the police officer, the aforesaid provision prohibits acceptance of such a confession.

8. The only exception relating to the confessional statement is under the provision of Section 27 of the Indian Evidence Act, 1872 and it is extracted hereunder for the sake of convenience.

'Section 27: How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'

9. Under the aforesaid provision, whenever the accused furnishes any information to a police officer while he is in custody, such information if leads to a discovery in pursuance of the statement made, the fact of recovery could be accepted as evidence.

10. On this aspect of the matter, the Apex Court has an occasion to consider the provisions of the Sections 24 to 30 of the Indian Evidence Act in a decision reported in AIR 1966 SC 119 (Aghnoo Nagesia Vs. State of Bihar).

11. The relevant portion is extracted hereunder:

'A confession or an admission is evidence against the maker of it, if its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstances is admissible in evidence against the accused. The section covers a confession made when he was free and not in police custody, as also the one made before any investigation has begun. The expression 'accused of any offence' covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. The partial ban imposed by S.26 relates to a confession made to a person other than a police officer. The absolute ban imposed by S.25 on a confession made to a police officer is not qualified by S.26. Section 27 is in the form of a proviso. It partially lifts the ban imposed by Ss.24, 25 and 26. The words of S.162, Criminal P.C. are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S.164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S.27 of the Evidence Act, S.25 of that Act absolutely protects a confession by an accused to a police officer and it is also protected by S.162 of the Code of Criminal Procedure if it is made in the course of an investigation, and a confession to any other person made by him while in the custody of a police officer is protected by S.26, unless it is made in the immediate presence of a Magistrate. These provisions proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. The provisions are based upon grounds of police policy, and they should be given fullest effect.'

12. Subsequent to this judgment of the Apex Court, in a catena of decisions the aforesaid provisions were considered and it has been held that a confessional statement of an accused which does not lead to any discovery cannot be admitted in evidence.

13. The learned Sessions Judge has referred to the provisions of Section 8 of the Indian Evidence Act which refers to a general rule regarding the acceptance of those facts which are within the knowledge of an accused. It is relevant to note that when there is a specific provision prohibiting a confessional statement as evidence, it is the exception which has to be followed and not the general rule. So it is Section 25 which prohibits the acceptance of confessional statement of the accused in evidence particularly in the context of Article 20(3) of the Constitution of India wherein an incriminating statement made by the accused cannot be used as evidence against him and that is the basic principle underlying the provisions of Section 25 of the Indian Evidence Act.

14. Though the learned Sessions Judge has referred to the judgment of the Apex Court said to have been reported in (2013) 4 Crimes SC 148, the facts are not referred to and only the principle is extracted. It is known as to in whose presence the confession was made. That apart, names of the parties are not available in the judgment. An effort was made on the basis of the principle said to be on the basis of Section 8 of the Indian Evidence Act, referred to by the learned Sessions Judge which appears to be equivalent to either (2013) 2 SCC (Cri) 530 (Subal Ghorai Vs. State of West Bengal) and (2014) 4 SCC 317 [Sushil Sharma Vs. State (NCT of Delhi)]. The aforesaid judgment does not reveal any such principle laid down on the provision of Section 25 of the Indian Evidence Act.

15. So taking into consideration the provisions of Sections 24 to 27 of the Evidence Act and the principles laid down, I am of the opinion that the learned Sessions Judge was not justified in admitting the voluntary statements of the petitioners as Exs.P26 to 30 in evidence. The contents of the aforesaid statements cannot be looked into for any purpose, while

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appreciating the evidence placed on record by the prosecution. 16. In a catena of decisions, it has been held that mere marking of a document is not the proof of its contents. Any document placed on record by the parties, if marked while the evidence is recorded, that itself is insufficient to accept such document having any evidentiary value. But anyhow as could be seen from the impugned order, the learned Sessions Judge has observed that such voluntary statement and the contents can be looked into as an evidence. This approach is both improper and erroneous. Therefore the order under revision has to be modified permitting the learned Sessions Judge only to consider it as a marked document and not to consider its contents as evidence. Therefore, the revision petition is accordingly allowed in part. I.A.No.1/2015 filed for stay does not survive for consideration. Hence, it stands disposed of.
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