Babu Singh vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal Nos. 121 and 140/62

Decision Date: 28 August 1962

Coram: Gajendragadkar, J.

In the matter of Babu Singh versus State of Punjab, the Supreme Court considered two criminal appeals, numbered 121 and 140 of 1962, which had been taken on special leave from judgments of the Punjab High Court dated 6 March 1962. The appellants, Babu Singh and Babu Lal, had been tried for murder under section 302 read with section 34 of the Indian Penal Code, and for concealing a dead body under section 201, also read with section 34. The evidence relied upon by the trial courts consisted of confessions that the appellants later retracted and the recovery of the victim’s body, which was located through the assistance of Babu Lal. The lower courts held that the confessions had been properly recorded, were voluntary, and, together with the body‑recovery evidence, justified convictions under the aforementioned provisions. The appellants argued that the confessions should be excluded because the magistrate had not complied with the safeguards prescribed in section 364(3) of the Code of Criminal Procedure, 1898, notably that the confessions were not recorded in the presence of the accused without any memorandum of the examination. They further contended that the confessions were involuntary. The State argued that any procedural defect was remedied by section 533 of the Code, which it said prevented prejudice to the defence, and maintained that the confessions were voluntary.

The Court held that the confessions were not voluntary and therefore could not be used against the appellants. It observed that the investigating officer had kept the accused in police custody for several days after the main investigation was completed, and that no endorsement on the confession indicated how much time had been given to the accused before they made their statements. Moreover, less than twenty‑four hours elapsed between the release of the appellants from custody and the recording of their confessions. The magistrate who recorded the confessions had also assisted the investigation by attesting recovery memos and displayed a casual attitude by disregarding the safeguards of sections 164(3) and 364(3) of the Code, which are intended to protect innocent persons. Given these circumstances, the Court concluded that the confessions could not be safely treated as voluntary. Consequently, after the confessions were excluded, the charge of murder could not be sustained against the appellants. However, the conviction of Babu Lal under section 201 of the Indian Penal Code was upheld, based on the recovery of the dead body at his instigation and the witness testimony regarding that recovery. The Court also referred to the precedent set in Nazir Ahmed v. The King Emperor (1936) L.R. 63 1 A 372 as relevant authority.

In this matter, the two criminal appeals numbered 121 and 140 of 1962 arose from a trial in which the appellants, Babu Singh and Babu Lal, had been charged with offences under section 302 read with section 34 and section 201 of the Indian Penal Code. The prosecution alleged that on or about 22 December 1960 the two accused murdered Mehtab Singh in furtherance of a common intention, thereby committing an offence punishable under section 302 in conjunction with section 34. The prosecution further contended that during the third week of January 1961 the appellants endeavoured to conceal the evidence of that murder by burying Mehtab Singh’s dead body, an act constituting an offence under section 201 of the Code. Mehtab Singh was the father of Babu Singh, while Babu Lal was described as a friend of Babu Singh. It was noted that Mehtab Singh lived alone and that his relationship with his son was strained; indeed, Mehtab Singh had previously complained to the police that he feared for his safety because of his son.

The prosecution’s case, as presented before the trial court, stated that on 22 December 1960 the two accused entered the residence where Mehtab Singh slept on a cot. According to the prosecution, they seized the victim while he was asleep; Babu Singh sat on the victim’s chest and throttled him, while Babu Lal held the victim down. After the killing, the body was placed in a gunny sack and hidden in a corner of the house. Babu Singh, who was familiar with the premises, forced open a locked trunk and removed a bag containing Rs 1,200. The accused then left the house, taking the money and ensuring that the premises were searched before their departure. With the proceeds, Babu Singh allegedly made a number of purchases. A few days later, with assistance from Babu Lal, the dead body was taken to Babu Lal’s house and buried in a kotha.

The discovery of the crime occurred in an unusual manner. Babu Lal had been arrested in connection with a separate theft case, and during his interrogation he made a disclosure statement indicating his willingness to assist the investigation. He subsequently led the police to his house, where, as a result of his statement, the kotha containing Mehtab Singh’s body was excavated. On the same day, Babu Lal gave another disclosure statement, which led to the recovery of additional items such as a watch, a radio, currency notes and other articles. The prosecution asserted that these goods had been bought by Babu Singh using the money taken from his father and were stored in Babu Lal’s house. Babu Singh himself was arrested on 22 January 1961 and, after making a similar disclosure, led authorities to further items, including shoes, a copper trunk and a purchase receipt relating to the watch. Following these discoveries, the appellants expressed a desire to make confessional statements and were sent to the magistrate on 6 February 1961. The magistrate ordered that they be placed in custody, and on 7 February 1961 both appellants were produced before the magistrate, who recorded their confessions. The prosecution relied on these confessions, together with the material discovered as a result of the statements, to support its charges.

According to the prosecution, the statements made by the accused led the police to discover a pair of items, a watch, a radio, one hundred rupees in currency notes and several other articles. The prosecution alleged that these goods had been purchased by Babu Singh with money he obtained after murdering his father and that they were stored in the house of Babu Lal. Babu Singh, who was arrested on 22 January 1961, made a similar disclosure that resulted in the recovery of shoes, a copper trunk and a purchase receipt relating to the watch. After these discoveries were effected pursuant to the statements of the appellants, it was alleged that the appellants expressed a desire to make confessional statements; consequently, they were sent to the magistrate on 6 February 1961. The magistrate directed that they be placed in jail custody, and they were accordingly taken to jail. On 7 February 1961, both appellants were produced before the same magistrate and their confessions were duly recorded. In addition to the discoveries made by the investigating officer, the prosecution relied on these two confessions in support of the charges against the appellants. The prosecution also pointed to a telegram sent on 15 January 1961, addressed to Babu Singh, described as being from “Bhola Ram” of Patiala, which purported to state that Mehtab Singh was seriously ill and that Babu Singh should be sent. It was argued that this telegram had been deliberately sent by Babu Lal to Babu Singh in order to conceal the commission of the principal offence of murder. On the basis of this material, the prosecution charged both appellants with the two offences specified. The trial judge accepted this evidence and gave no weight to the fact that the appellants had later retracted their confessions. Accordingly, he convicted both appellants under section 302 read with section 34 as well as under section 201. Babu Singh was sentenced to death for murder and to rigorous imprisonment for seven years for the offence under section 201. Babu Lal was sentenced to life imprisonment for the offence under section 302 read with section 34 and to seven years for the offence under section 201. The death sentence imposed on Babu Singh was placed before the Punjab High Court for confirmation, and both appellants also filed appeals challenging the conviction and sentence passed by the trial court. The High Court heard the matters together and concurred with the trial court’s view. It held that the confessions had been duly recorded by the magistrate, were voluntary and true. Although the confessions had been retracted, the High Court examined whether they were corroborated and, in doing so, considered the discoveries that resulted from the statements of the two appellants.

In this matter the two appellants challenged the judgment of the High Court, which had affirmed the trial court’s conviction and sentences on the basis of two written confessions. Counsel for the appellants argued that the prosecution had not proved the confessions and, alternatively, that the circumstances surrounding the recording of the confessions rendered them involuntary. The High Court, however, had not examined this argument. It had simply observed that the magistrate had recorded the confessions and that the appellants had been given sufficient time to decide whether to make the statements before they were recorded. In reaching that conclusion, the High Court appeared to rely on the magistrate’s testimony given during his examination‑in‑chief, while it did not consider the admissions the magistrate made when he was cross‑examined. Those cross‑examination admissions indicated that the procedure required by section 364(3) of the Code of Criminal Procedure had not been followed in recording the confessions, raising a significant issue that the High Court had overlooked. It was regrettable that, despite the clear relevance of the magistrate’s cross‑examination statements, the High Court neither addressed the defect in the way the confessions were recorded nor examined its impact before concluding that the confessions were properly recorded, voluntary, and truthful. The factual record showed that the appellants were produced before the magistrate on 6 February 1961 and were ordered to be placed in jail custody on the evening of that day. Their confessions were then recorded during court hours on 7 February 1961. When the magistrate testified about the confessions, he said that the appellants were produced before him on 7 February 1961, that he gave them one hour to consider whether to make the statements, and that he subsequently recorded the confession verbatim. He further stated that he read the recorded statements back to the appellants, that they indicated their agreement by thumb‑marking the document, and that he considered the statements correct. The High Court appears to have based its view on this portion of the magistrate’s testimony when deciding whether the confessions had been properly recorded. However, when the magistrate was cross‑examined about the recording process, he admitted that the confessions had not actually been recorded by him personally; they were recorded by his assistant, referred to as the “Ahmad Reader.” He could not identify which assistant had prepared which confession, could not recall making a separate memorandum as required by section 364(3), and was uncertain about the sequence of the recordings or the places where the two appellants were detained when each confession was made.

The magistrate testified that the two confessions, which were marked as Exhibits P. P. and P. Q., had not been recorded by him personally. He explained that the written records of those statements had been made by a court official identified as Ahmad Reader. When questioned as to whether he could recall which of the two confessions had been written by which reader, the magistrate admitted that he was unable to say whether Exhibit P. Q. or Exhibit P. P. had been prepared by a particular individual. He justified this procedure by stating that a verbatim record in Urdu was required and that he was not well‑versed in Urdu script, which is why he relied on the reader to produce the written statements. The magistrate was further asked whether he had prepared a separate memorandum of the statements as mandated by section 364 (3). He responded that he had not made such a memorandum. He was also questioned about the order in which the statements had been recorded, and he again stated that he could not recall the sequence. Additional inquiries sought to establish where appellant Babu Singh had been detained when Babu Lal made his confession, and where Babu Lal had been detained when Babu Singh made his confession. The magistrate answered that he did not remember the location of the other appellant at those times. From these admissions it was evident that the magistrate had not recorded the confessions in his own handwriting, and his lack of familiarity with Urdu writing meant that the procedural requirements of section 364 (3) had not been satisfied. The Court noted another relevant factor concerning the voluntariness of the confessions. It appeared that the magistrate, who served as a Haqua magistrate of Ambala, had been instructed by the Additional District Magistrate to proceed to the police station at Ambala Cantonment on 22 January 1961 in connection with the recovery of a dead body. The magistrate complied with that direction, attended the police station, and attested the signatures of witnesses on the disclosure document that led to the discovery of the body. He was present when Babu Lal gave his statement, when the dead body was recovered, and he signed the recovery memorandum. He also signed another recovery memorandum that recorded the discovery of additional articles pursuant to another statement made by Babu Lal. Consequently, the magistrate who had recorded the confessions had also actively assisted the investigation by attesting these recovery memoranda, which are material to the present case. The High Court, however, had not taken this aspect into consideration. It was observed with regret that, although the cross‑examination of the magistrate revealed that he had not personally recorded the confessions, the prosecution failed to call the court officers who had actually written the statements, and the trial court did not require the prosecution to examine those witnesses. The defence, on the other hand, examined Harbans Singh, one of the officers who had recorded Babu Lal’s confession.

The witness recounted that the two appellants were taken before the magistrate’s court and that they gave their confessions on 7 February 1961. He further explained that the confession of Babu Lai was recorded first and that Babu Lai himself wrote it down. Afterwards the witness added that the statement of Babu Singh had been recorded by a court employee named Rajinder Dat Ahmad. Consequently, it appeared that Rajinder Dat Ahmad, who had actually prepared the written confession of Babu Singh, had not been called as a witness, whereas Harbans Singh had been produced as a witness on behalf of the defence. The court expressed regret that, in a murder case such as this, the prosecution had failed to examine the clerks who had prepared the confessional statements. The magistrate admitted that he was not conversant with the Urdu script and used this lack of knowledge as the reason for not recording the confessions himself. In view of this circumstance, it was of paramount importance that the clerks who had drafted the statements should have been called to testify and that the appellants should have been afforded the opportunity to cross‑examine them in order to test the prosecution’s claim that the confessions had been duly and properly recorded. Such an opportunity constituted a safeguard to which the appellants were unquestionably entitled. This consideration formed another facet of the matter that needed to be kept in mind while addressing the issues raised by counsel for the appellants. The court then asked whether, if the magistrate who had supervised the recording of the confessions had failed to observe the requirements of section 361(3) of the Code of Criminal Procedure, the confessions could be said to be unproved or whether the making and recording of the confessions might be vitiated to the extent of rendering them inadmissible. Answering this question required reference to three provisions of the Code of Criminal Procedure. Section 164 vested in the magistrate named in subsection (1) the authority to record statements and confessions. Subsection (2) of section 164 provided a safeguard intended to protect innocent persons, directing that such statements authorized under subsection (1) must be recorded in the manner prescribed for evidence, as deemed appropriate by the magistrate in the circumstances of the case. The provision further required that the confessions be recorded and signed in accordance with section 364 and then forwarded to the magistrate who was to conduct the inquiry or trial. Thus, sub‑section (2) mandated that the confessions be recorded as prescribed by section 364, constituting one safeguard. Sub‑section (3) introduced additional safeguards, stipulating that before recording any confession the magistrate must explain to the person making it that he is not compelled to confess and that any confession made may be used against him.

The Court explained that a magistrate is not authorized to record a confession unless, after questioning the person who made it, the magistrate is satisfied that the confession was given voluntarily. The magistrate must also inform the person that the confession can be used as evidence against him and that he is under no obligation to confess. When a confession is recorded in accordance with the prescribed procedure, the magistrate is required to make a memorandum at the foot of the record stating that the confession was taken voluntarily. Section 361(1) mandates that the full confession be recorded in the manner prescribed and that its contents be explained to the accused in a language he understands, allowing the accused to clarify or add to his answer. Section 361(2) requires that, when the entire confession is made in conformity with what the accused declares to be true, both the accused and the magistrate must sign the record, and the magistrate must certify under his own hand that the examination was conducted in his presence and hearing and that the record reflects a full and true account of the statement. Moreover, when the examination of the accused is not made by the magistrate or judge himself, the magistrate must, as the examination proceeds, prepare a memorandum in the language of the court or in English if he is sufficiently proficient, write it, sign it with his own hand, and annex it to the record. If the magistrate is unable to make such a memorandum, he must record the reason for his inability. Consequently, if a confession is not recorded by the magistrate himself as required by Section 364(1), it becomes necessary for the magistrate to make a memorandum during the examination and to sign it.

It was admitted that in the present case the confessions were not recorded in the manner prescribed by Section 364(1) and that the safeguard provided by Section 364(3) was not complied with. Counsel for the petitioner, Mr Rans, argued that the failure to observe the requirements of Section 364(3) rendered the confessions inadmissible. To address this issue, the Court considered the provisions of Section 533 of the Code, which the respondent’s counsel, Mr Khanna, relied upon. Section 533(1) provides that if a court before which a confession recorded or purported to be recorded under Section 164 or Section 1364 is tendered, and the court finds that any of the provisions of those sections have not been complied with by the magistrate, the court shall take evidence that the person indeed made the recorded statement. The section further states that, notwithstanding Section 91 of the Indian Evidence Act, the statement shall be admitted if the procedural error has not injured the accused with respect to his defence on the merits.

In this case the Court observed that a statement may be admitted when the procedural error does not prejudice the accused’s defence on the merits. Counsel for the State argued that the magistrate actually gave evidence in the trial court and that the magistrate’s testimony indicated that the confession had been duly recorded. He further maintained that, unless the accused can demonstrate prejudice, the failure of the magistrate to comply with section 364(3) does not invalidate the confession nor render it inadmissible. The Court noted that this contention possesses some merit and therefore turned to section 80 of the Indian Evidence Act. That provision states that whenever any document is produced before a court purporting to be a record or memorandum of evidence, or a statement or confession by a prisoner or accused person taken in accordance with law and appearing to be signed by a judge, magistrate or authorized officer, the court shall presume the document to be genuine, the statements about the circumstances of its taking to be true, and the evidence, statement or confession to have been properly taken. The State relied on this section to argue that the confessions should be taken as proved, based on the magistrate’s evidence and his certificate appended to the confessions. It remained open to argument whether section 80 could be invoked where the recording of the confession was irregular because section 364(3) had not been complied with. For the purpose of the present appeals, however, the Court elected to assume, in favour of the prosecution, that the confessions had been proved and therefore could be examined on their merits provided they were shown to be voluntary. This was the alternative line of argument advanced by counsel for the appellant, Mr Rana. Turning to the question of voluntariness, the Court considered several broader features of the case. The first important circumstance cited by Mr Rana was that both appellants made discovery statements on 22 January, and that by that date the substantial part of the investigation appeared to have been completed, yet the investigating officer kept both appellants in police custody until 6 February. While the Code of Criminal Procedure permits an investigating officer to retain an accused in custody if essential for the purpose of investigation, where it appears that the investigating officer has kept an accused

The Court observed that the fact the appellants remained in police custody even after the substantive part of the investigation had been completed must be taken into account when assessing whether the confessions they later made were truly voluntary. This circumstance favored the appellants. Another significant fact was that the appellants were produced before the magistrate on the evening of February 6 and were subsequently placed in jail custody. They were then brought back before the magistrate on February 7, at which point the magistrate proceeded to record their confessions. In his testimony, the magistrate asserted that he had given the appellants one hour to consider whether they should make any confession. However, the documentary record of the confessional statements contains no endorsement to that effect. Under section 364, it is customary for the magistrate to make an endorsement indicating the time of the accused’s arrest, the time of appearance before the magistrate, and the period of time allotted for the accused to reflect on making a confession. Among the several irregularities noticed in the recording of these confessions, the absence of any endorsement showing how much time was given to the appellants before they confessed was highlighted. The confessions were recorded on February 7, while the magistrate gave evidence in December of the same year. The Court found it difficult to accept that the magistrate could accurately recall having granted the appellants one hour for consideration. This observation was reinforced by the magistrate’s own inability to answer other factual queries definitively. For example, when asked who had recorded the confessions, the magistrate could not recall which “Reader” in his court had noted each confession. Similarly, when questioned about the order in which the two appellants made their confessions, the magistrate admitted he did not remember the sequence. He also could not recall where the other accused was situated while one was making a confession. In light of these admissions concerning material details, the Court considered whether, in the absence of any contemporaneous evidence, the magistrate’s statement that one hour had been given could be accepted without reservation. Moreover, even assuming that one hour was indeed provided, the Court noted that this interval fell short of the generally accepted period of at least twenty‑four hours after an accused is released from police custody before a confession should be recorded. The Court reiterated its long‑standing emphasis that, before recording a confession, the magistrate must be satisfied that the accused’s mind is free from fear or any psychological pressure that may have been engendered during police custody.

The Court explained that a magistrate recording a confession must first ensure that the accused is free from fear or any mental effects produced by police custody, and that, as a general practice, a period of at least twenty‑four hours should pass after the accused leaves police custody before a confession is taken. The Court added that this guideline is not rigid; each case requires the magistrate to determine the appropriate length of time for the particular accused before recording a confession. In the present matter, the Court noted that the appellants had been detained in police custody for an extended duration, and therefore the time allowed to them to decide whether to make a confession was, in the Court’s view, wholly inadequate and unsatisfactory. The Court observed that this insufficiency constituted another ground on which Mr Rana could rely. The Court then turned to a third unusual aspect of the case: the magistrate who recorded the confessions had also participated in the investigation by attesting recovery memoranda in two separate cases. While Mr Khanna argued that there is no statutory bar preventing a magistrate who has attested such memoranda from thereafter recording a confession, the Court held that the issue was not one of technical legality but of propriety. The magistrate had told the appellants, when they were brought before him, that he was independent of the police and that they were free either to confess or not to confess. The Court said that because the magistrate had actively assisted the police by attesting recovery memoranda, a lay appellant might find his claim of independence to be doubtful or subtle. The Court recalled the observation of the Privy Council in Nazir Ahmed v. The King Emperor, which warned that it would be “particularly unfortunate if magistrates were asked at all generally to act rather as police officers than as judicial persons.” Accordingly, the Court expressed the view that it is desirable for magistrates who have taken part in attesting recovery memoranda not to record confessions of persons accused of the offence under investigation. The Court recognized that investigative agencies may seek magistrates’ assistance to lend authenticity to recovery memoranda, but it stressed that, when such assistance is rendered, the accused should be sent to a different magistrate for the purpose of recording any confession. This consideration formed another factor influencing the Court’s assessment of the voluntariness of the confessions in the present appeals. Finally, the Court expressed concern that the magistrate had adopted a somewhat casual attitude while recording the confessions. It emphasized that the protections contained in Section 164(3) and Section 364(3) are valuable safeguards intended to protect innocent persons, and that the act of recording a confession is a solemn and serious undertaking. Consequently, any magistrate who records a confession must approach the task with the requisite seriousness and reverence.

The Court emphasized that a tone of casualness must not be allowed to enter into the process of recording a confession. After reviewing the evidence presented by the magistrate in the case, the Court observed that when the magistrate recorded the confessions, he did not appear to be fully aware of the solemn and serious nature of the act he was performing. This observation formed another factor that weighed on the Court’s mind. Considering these aspects of the case, the Court was not prepared to uphold the finding of the High Court that the confessions made by the appellants could be safely treated as voluntary. Consequently, if the confessions were excluded from consideration, it would be impossible to sustain the charge of murder against either of the two appellants. The murder charge in this case rested almost entirely on those confessions, and the Court therefore held that the High Court should have examined these relevant factors more carefully before confirming the appellants’ convictions under section 302 and before confirming the death sentence imposed on Babu Singh. In the Court’s opinion, when the confessions are left out of consideration, the charge of murder cannot be sustained. As a result, the convictions of both appellants under section 302 read with section 34 were set aside, and the sentences imposed for that offence were also set aside. The Court then addressed whether the alternative charge under section 201 could be proved. That charge against Babu Lal was established largely on the recovery of a dead body from his house. The recovery was documented by a memo, and the witnesses present at the time of the recovery gave testimony supporting the memo. The High Court, and the Court agreed, held that the circumstances of the recovery of Mehtab Singh’s body, the time at which it was recovered, and the statement made by Babu Lal prior to the recovery all indicated that Babu Lal had committed the offence under section 201 of the Indian Penal Code. However, the same conclusion could not be extended to Babu Singh. In dealing with the charge against Babu Singh under section 201, the High Court was evidently influenced by its finding that Babu Lal was guilty under sections 302 and 34. Had the Court affirmed that finding, there would have been no difficulty in confirming Babu Lal’s conviction under section 201, because that finding relied on the two confessions made by Babu Lal and Babu Singh. Because the Court chose to discard the confessions, there was no evidence on which Babu Singh could be convicted under section 201. Moreover, the recovery of certain articles purchased by Babu Singh with money alleged to have been stolen from his father’s house could not, in law, justify the inference that he had assisted in the commission of the offence under section 201.

In the matter of the offence punishable under section 201, the Court found that the conviction of Babu Singh under that provision could not be upheld. While it remained possible that both Babu Singh and Babu Lal had participated in the offence under section 201 and that each might also have been concerned with the principal murder, the Court emphasized that the presumption of innocence is a fundamental principle in criminal trials. Consequently, the prosecution must prove the guilt of the accused beyond reasonable doubt; mere probabilities, however strong, and grave suspicion can never replace proof. Accordingly, the Court was satisfied that the appeal filed by Babu Singh should be allowed and that he ought to be acquitted of both the offences charged under section 302/34 and section 201, and that he should be ordered to be set at liberty. Regarding Criminal Appeal No. 140 of 1962 preferred by Babu Lal, the Court held that his conviction and sentence under section 302/34 were set aside, whereas his conviction under section 201 and the seven‑year imprisonment imposed for that offence were confirmed. The Court therefore allowed Criminal Appeal No. 121 of 1962 and partly allowed Criminal Appeal No. 140 of 1962.