1989 P Cr (PLP)

(1) "In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the finding of Court acquitting the accused. This approach is slightly different than that in appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after that trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) ............................................................... (4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court' was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf, was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

10. It seems pertinent to reproduce an extract from judgment in Sheo Swarup's case reported in A I R 1934 PC 227, wherein it was observed that:- ?...?..in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

11. In the light of the foregoing principles, we may say that the learned counsel for the State did not even make an attempt to show that the acquittal of the three respondents before us was on account of non-consideration or misreading of any piece of evidence or that the trial Court received evidence illegally.

12. Reverting to the confessions of the respondents/accused, the contention of the counsel, in so far as it relates to the difference between retraction and denial, seems to be fallacious, if not superfluous. Retraction, in its literal sense, means `drawing or pulling back', whereas denial means `denying of the existence or reality of a thing' or `refusal to acknowledge'; a `disowning' `disavowal'. Both the terms, therefore, imply contradicting a thing which is shown to exist. To us, in the fact, as alleged, that no confession was recorded; the respondents were made to sign blank papers under duress, it makes little difference in effect and consequence if it is termed as `retraction' or `denial' by the respondents/accused or the prosecution.

13. However, before dealing further with the contention, we must analyse the legal position and effect of a retracted confession.

14. In Qalandar Bux v. The State P L D 1964 (W.P.) Kar. 269 it was observed that: "It is settled that the evidentiary value of a retracted confession against a co-accused is small and that the very fullest corroboration of such a confession is necessary, even where the confessions is true and voluntary."

15. In Ramzan v. The State P L D 1966 (W.P.) Kar. 242, it was held that `retracted confession cannot legally be taken into consideration against the makers of those confession unless they are corroborated in material particulars by some other evidence on the record except the extra judicial confession alleged to have been made by the respondent."

16. In State of Uttar Pradesh v. Boota Sing and others A I R 1978 SC 1770 (1775), it was observed that:- "A retracted confession can be acted upon only if substantially corroborated by independent circumstances. It is not necessary that a In retracted confession should be corroborated in each material particular, but it is sufficient that there is a general corroboration of the important incidents mentioned in the confession."

17. Learned counsel has not been able to satisfy us that there was any corroborative evidence to support the confessions of the respondents.

18. We also had the benefit of going through the judgment of the Division Bench, which heard the criminal appeals of the two convicts, Ayoob and Tauqir, alongwith confirmation case, whereby the said two convicts were acquitted and reference for confirmation was rejected. In the said judgment, the learned Judges discussed in detail (pages 22-56) the nature of all the five confessions. The learned Judges thoroughly examined the corroborative evidence, if any, and found that `no satisfactory corroboration is available against appellants Ayoob and Tauqir to supplement their retracted confessions." (p.56). The same thing we may observe against the present three respondents. In fact, the learned trial Judge, too, did so hold in his judgment in respect of the three respondents.

19. The learned Judges divided the confessions into two parts; First, before kidnap and Second, after the kidnap. They found that there were certain material discrepancies in the said confessions which have remained unexplained (pages 22?40 of the judgment). It was thus observed in the judgment as under:- "It is clear that there are variations and discrepancies in the confessional statements of accused persons in their narration of story of incident. These variations and inconsistencies reflect upon the credibility of the story of the incident. On reading the confessions of all the accused persons, one cannot avoid impression that story is not narrated in a truthful manner. Had the story been true then there would have not been discrepancies and contradictions and variations in the statements of all the accused persons and their statements would have reflected consensus and unanimity on the narration of story."

20. Now, as to the legal requirements of recording judicial confession, reliance is placed by us on a decision of another Division Bench of this Court, comprising of Ajmal Mian and Munawar Ali Khan, JJ 1984 P Cr. L J

611. Munawar Ali Khan, J., who delivered opinion of the Court, referring to several judgments, observed that:- "The view that crystallises from the above authorities is that Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that we should reiterate the procedure which is followed in recording confession for their guidance. Magistrate would? be well?advised to follow the procedure which is given below:- `As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:- (i) For how long have you been with police? (ii) Has any pressure been brought to bear upon you to make confession? (iii) Have you been threatened to make confession? (iv) Has any inducement been given to you? (v) Why are you making this confession? (vi) Have you been maltreated by police? After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."

21. The learned Judges after discussing the evidence of P.W.9, the Magistrate. particularly the cross-examination, held that the requirements of section 164(3) of the Criminal Procedure Code 1898 were not fulfilled in the case and that the confessions were not voluntary (P.63). We would respectfully adopt the reasoning and fording of the learned Judges of the said Division Bench and hold that the confessions of the three respondents before us were also made by them involuntarily. It hardly needs to be stated that the confession, if held to be made under coercion, is inadmissible in law as provided under section 24 of the Evidence Act, 1872, as then in force.

22. Learned counsel for the State, next submitted that the learned trial Judge was wrong in acquitting the three respondents after holding that the deceased Taranum Aziz was kidnapped, raped and sodomy was committed upon her and that all the accused joined together in committing murder of the girl in pursuance of such common intention. The contention is misconceived, firstly, because there is no direct evidence against the respondents. The mainstay of the prosecution has been the judicial confessions which, having been retracted, have already been held untrue and involuntary. In any case, the learned Judges in the two appeals, referred to above having examined the report of the Chemical Examiner and other circumstantial evidence negatived the finding of the learned trial Judge and acquitted the two accused/convicts. Respectfully following the same reasoning, we uphold the judgment in acquittal of the three other accused who are respondents in the above appeal before us, as we have no reason to take a different view.

23. For the reasons aforesaid, the Criminal Acquittal Appeal is dismissed, and the surety bonds executed on behalf of the respondents will stand discharged. The above are the reasons for our short order, dated 23-2-1989 dismissing the appeal on conclusion of the arguments.????? M.B.A./S-340/K????????????????????????????????????????????????????????????????????? Appeal dismissed.