LexBABUBHAI UDESINH PARMAR versus STATE OF GUJARAT
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BABUBHAIUDESINHPARMAR A v. STA TE OF GUJARAT NOVEMBER 24, 2006 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] B Code of Criminal procedure, 1973; Ss. 164 and 313: Rape and murder of a minor girl-Judicial confession-Trial Court found accused guilty of committing offences of rape and murder and imposed C death penalty-Affirmed by High Court-On appeal, Held: Apart from purported confession, no other material was sufficient to establish guilt of the accused-Inconsistencies appeared in prosecution case vis-a-vis purported confession-Oath administered to accused which is prohibited in law-It assumes significance since his evidence on oath also recorded-A judicial D confession admissible in evidence and treated as relevant fact-A judgment of conviction could be based on a confession if found to be truthful, deliberate and voluntary-Provisions under Section 164 Cr.P. C. provides safeguards for an accused-Therefore, these provisions required to be complied with strictly-- Magistrate had recorded the confession in the present case and another case in quick succession instead of giving reasonable time in-between as both the E cases involved serious offences and resulted in extreme penalty-There was no direction to provide free legal aid to the accused though he had made confession in number of cases at the same time-Purported corroborated evidence brought on record by prosecution not sufficient to prove guilt of accused-Hence impugned judgment set aside. F Accused-appellant allegedly committed rape and murder of a minor girl. Allegedly, the accused had taken her from the shed where she was sleeping along with her family members. On the next day morning, her dead body was found lying in the surrounding field. Her neck was tied with a frock which was worn by her. Blood was found to have been oozing out from her private G part. The knicker worn by her was also missing. Brother of the the deceased made a complaint to police. The accused was arrested by the Police. Later, he purported to have made a confessional statement before PW-2, Judicial Magistrate. Trial Court, principally relying on or on the basis of the judicial 401 H 402 SUPREME COURt REPORTS [2006] SUPP. 9 S.C.R. A confession made by him, found him guilty of commission of offence of rape and murder. The trial Court also took into consideration the fact that the accused has been found guilty of commission of similar offences as also other offences in other cases and imposed death penalty on him. The High Court affirmed the judgment of conviction and sentence. Hence the present appeal. B Allowing the appeal, the Court HELD: 1.1. Rape and murder of the minor girl is not in dispute before this Court. It is also not disputed that apart from the purported judicial confession there is no other material which can be said to be sufficient to establish the guilt of the accused. The Chief Judicial Magistrate recorded C the confession on the basis of an application made by the Investigating Officer. An application was also filed to record the confession of the accused in another case. (405-A; 406-A-BJ 1.2. The Magistrate examined himself as PW-2. In his deposition he D reproduced the statements of the accused. In his cross-examination, he accepted that the confession started at about 11.15 a.m. and was completed at about 11.30 a.m. He did not remember that on the same day he recorded another confession of the accused in relation to another Session Cast:. He, however, accepted that he had done so when it was brought to his notice. Recording of ·· · that confession was completed at 11.45 a.m. Till then no legal aid was provided E to him. He did not examine the body of the accused. He asked only the routine question as to whether he was ill-treated by the police. He accepted that the accused was produced before him under police protection and was also taken back under the police protection. (406-F-G-H; 407-A] F 1.3. Two inconsistencies appeared in the prosecution case vis-a-vis the purported confession. The evidence of the brother of the deceased categorically shows that the offence was committed in between 2 a.m. and 4 a.m. The purported confession shows that the offence was committed around 12 O' Clock in the night. The prosecution case proved that not only the complainant but also other family members were sleeping in the same shed. The purport G of the confessions goes to show that the deceased was sleeping alone in the
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