Unsigned Confession Cannot Be Sole Basis For Conviction: Gauhati HC

It is extremely significant to note that while ruling on a very key point pertaining to the evidentiary value of unsigned confession, the Gauhati High Court has in a most learned, laudable, landmark, logical and latest judgment titled Shri Kedukhoyi vs State of Nagaland in Case No. : CRL.A(J)/10/2022 and cited in Neutral Citation No.: GAHC020007972022 that was heard on 22.05.2024 and then finally pronounced on 29.05.2024 has been most unequivocal in ruling that an accused cannot be convicted for a crime solely based on an unsigned confessional statement, without any other evidence to back up the allegations. To put it differently, the Gauhati High Court has made it pretty clear that signing of accused in confessional statement is a prerequisite for being accepted as sole basis for conviction. It must be certainly mentioned here that this most commendable ruling was delivered in a rape and murder case where the only evidence that was available against the accused when the matter reached the High Court was a photocopy of a confession statement. It is quite perplexing to note that this confession statement which became the foundation stone for the conviction was not even signed by the accused (appellant) or the Magistrate who was said to have recorded it which is imperative for a fair trial yet not ensured here and should have been outrightly rejected by the Court at the very first place.

It is thus in the fitness of things that a Division Bench of Gauhati High Court comprising of Hon’ble Mr Justice Sanjay Kumar Medhi and Hon’ble Mr Justice Budi Habung who authored this brilliant judgment unequivocally held that if the confession statement has not been signed or proved by the Magistrate who recorded it, the same cannot be treated as the true confessional statement by the accused under Section 164 of the Code of Criminal Procedure (CrPC). We thus see that the Court deemed it absolutely fit to order the release of the accused man after 21 years of imprisonment. The appellant had been convicted by a trial court for the murder and rape of a woman in 2003.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Budi Habung for a Division Bench of the Gauhati High Court comprising of Hon’ble Mr Justice Sanjay Kumar Medhi and Hon’ble Mr Justice Budi Habung sets the ball in motion by first and foremost putting forth in para 2 that, “This is a jail appeal preferred under section 374 of the Criminal Procedure Code assailing the impugned judgment and order dated 01.10.2004 passed by the learned Additional Deputy Commissioner (Judicial), Phek, Nagaland in GR No. 27/2003 arising out of Phek PS Case No. 0012/2003 under section 302 & 376 IPC. By the said impugned judgment and order, the accused Shri Kedukhoyi, has been convicted and sentenced to undergo imprisonment for life for offence under section 302 & 376 of IPC.”

To put things in perspective, the Division Bench envisages in para 3 that, “The brief facts of the case leading to the preferring of this Jail appeal is that on 18.05.2003, a written request for registration of the case was received by the Officer-in-Charge, PS, Phek from one Nuvotso of Kotisu village, inter-alia stating therein that on 17.05.2003, his wife Smt. Vesazolu (Deceased) went to the field and did not return. On search, her dead body was found 1 km away from the village on 18.05.2003 morning at around 6 am. On finding her dead body it was found that she had been raped and murdered because her dead body was found naked and blood was oozing from her private part and thus, requested for taking necessary action. The case was registered being Phek PS case no. 0012/2003 U/S 302 & 376 IPC and investigated into.”

As it turned out, the Division Bench enunciates in para 4 that, “On completion of the investigation, the IO of the case filed charge sheet against the accused under sections 302 & 376 of IPC.”

Do note, the Division Bench notes in para 5 that, “At the outset it is pertinent to note that the record of the Trial Court were called for; however, it was reported that despite vigorous search made in the Court and office, the records in connection with above GR case no. 27/2003 corresponding to Phek PS case no 0012/2003 could not be traced out. Finding no alternative, the Trial Court was directed to make an effort to reconstruct the records of the said case. As a result, the Trial Court found out and collected some documents. The collected document includes the copy of FIR, the confessional statement of the accused (convict Shri. Kedukhoyi) and the impugned judgment and order collected from the District Jail, Phek. The said collected documents have been complied in the paper book.”

Simply put, the Division Bench states in para 6 that, “The records reveal that the contents of the charges were read over and explained to the accused during consideration of charge, to which the accused pleaded guilty. However, the case had proceeded for trial. To establish their case, the prosecution had altogether examined 5 prosecution witnesses. Upon completion of the evidence of prosecution witness, the accused was examined under section 313 Cr.P.C where the accused is stated to have admitted his guilt of commission of the alleged offence of murder and rape upon the deceased. The accused did not produce any witness in his defence.”

Be it noted, the Division Bench notes in para 7 that, “On completion of the trial, the accused (appellant herein) has been convicted and sentenced to undergo imprisonment for life for offence under section 302 & 376 IPC. The convict did not prefer appeal against the Judgment and sentence. However, later on the convict has made a representation before the Government praying for pre-mature release. But as the said application was not considered, the appellant filed W.P.(Crl)/02(K)/2019 before this Court which was disposed on 04.07.2019 with a direction to the respondent authority to consider the representation submitted by appellant. The said application was accordingly considered and rejected on the ground that a person convicted under section 376 IPC for committing rape is not entitled to be released pre-maturely.”

It must be seen that the Division Bench stipulates in para 14 that, “Upon hearing the parties and on perusal of the record, the question which emerges for our decision is;

Whether in absence of any other evidence, the accused can be convicted solely based on his so-called admission and unsigned confessional statement?”

It is worth noting that the Division Bench notes in para 15 that, “As it is discernible from the records 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 is an established principle of law that the prosecution has to prove their case beyond reasonable doubt against the alleged accused. In the instant case although the original records are not available, however, it is discernible from the available records that right from the beginning, the investigation of the case was not properly and adequately done. 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.”

While taking potshots further in the manner of investigation being conducted and pointing out shortcomings in prosecution’s case, the Division Bench observed in para 16 that, “Although the IO is stated to have held inquest, but no any inquest report is available on record nor is there any record of exhibiting the same. Again, as the dead body of the deceased is stated to be found with blood and semen stained on her private part, but no blood stain was collected and sent for experts’ opinion. Admittedly, no post-mortem examination was conducted over the dead body of the deceased to ascertain the cause of death of the deceased. These are some of the basic requirements in the death case, however, the same were not done and in absence of any other evidence or the prosecution shows sufficient cause for not producing the above, we are unable to be convinced that it was the accused and the accused alone who caused the death of the deceased and thereafter committed sexual intercourse with her. The prosecution has to prove its own case beyond all reasonable doubt, however, in the instant case, the prosecution has miserably failed to prove its case.”

Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 17 wherein it is postulated that, “Further, although the accused has been convicted solely based on his confessional statement, there is no record of the confessional statement except the unsigned Xerox copy of the purported confessional statement containing the signature of the Police Court, Phek. That probably was the reason why the Magistrate has not been summoned to prove the said document. 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. As such, the same cannot be relied on for conviction of the accused for murder and rape.”

It cannot be dismissed lightly that the Division Bench specifies in para 18 that, “The learned legal aid counsel submits that the appellant has completed about 21 years inside the jail in execution of the sentence without any remission. The application of the appellant for pre mature release was rejected as the offence involved with was section 376 IPC. He further submitted that the sexual intercourse committed after the death of a person does not constitute rape punishable under section 376 IPC.”

It cannot be lost on us that the Division Bench points out in para 20 that, “As observed above, although the accused is stated to have pleaded guilty at the time of hearing on charge; but since the Trial Court has proceeded with the Trial of the case, it was the duty of the prosecution to prove its case beyond reasonable doubt. However, 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. Although in his so called confessional statement the accused had mentioned one boy of same village who used to study at Holy Care School, Phek, but the said boy was never produced before the Court for examination. The accused has also stated to have come across his nephew, Ate and his wife who offered him tea on the way. But no efforts has been made to examine them to confirm the movement of the accused towards the place of occurrence on the incident day.”

Quite significantly, the Division Bench rightly points out in para 21 that, “The records also do not show that after completion of investigation, the accused was examined under section 313 of Cr.P.C 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.”

As a corollary, the Division Bench propounds in para 22 that, “For the reasons stated herein above and in view of the fact that the learned Trial Court has convicted and sentenced the accused to undergo life imprisonment solely basing on the unsigned and unproved confessional statement, we are of the considered view that the finding of the learned trial court is without any substances as it lacks both material and circumstantial evidences to convict the accused for murder and rape. In fact, the prosecution failed to prove the case against the accused beyond reasonable doubt. Hence, we are constrained to interfere with the impugned judgment and order.”

Resultantly, the Division Bench then directs in para 23 that, “Accordingly, the impugned judgment and order dated 01.10.2004 whereby the accused has been convicted and sentenced to undergo life imprisonment is hereby quashed and set aside.”

Notably, the Division Bench then notes in para 24 that, “The appellant be set at liberty and released, forthwith, if not required in any other case.”

Finally, the Division Bench then concludes by holding in para 25 that, “The appeal stands allowed and disposed of. No order as to cost.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.