Ghulam Hyder vs State of Jammu & Kashmir

Mansoor Ahmad Mir, J.—This Criminal Appeal is directed against the judgment and order dated 19th September, 2002 passed by learned

Sessions Judge, Kargil, in the case titled as State (through SHO P/S Kargil) v. Ghulam Hyder, FIR No. 22/2002 P/S Kargil, whereby and where-

under the appellant has been convicted for the commission of offence punishable u/s 302 RPC and against the order of sentence dated 26th June

2003, whereby the appellant has been sentenced to imprisonment for life subject to confirmation by this Court, which shall be referred, hereinafter,

as impugned judgment and impugned order respectively.

It appears that Sessions Judge, Kargil, convicted the appellant/accused for the commission of offence punishable u/s 302 of RPC and sentenced

him to simple imprisonment for life subject to confirmation by this Court vide order dated 19th Sept., 2002. This Court set-aside the order of

sentence and remanded the case back on the court that accused was not heard on quantum. The trial court, after hearing the prosecution as well as

the accused, sentenced the accused to simple imprisonment for life vide impugned order dated 26.06.2003 subject to confirmation by this Court

and accordingly, submitted the file to this Court for confirmation of the sentence. The accused also submitted an application from Central Jail which

came to be diarized as criminal appeal.

BRIEFFACTS

On 25.05.2002, a report was lodged in police station Kargil, with the allegation that Ghulam Hyder, accused, has kept his 9 year old daughter,

Mst. Zohra, at some unknown place with the intention of abandoning her. The said report set the police in motion and accordingly FIR No.

22/2002 was registered and accused was arrested. On questioning, the accused failed to give satisfactory reply and stated that he had left the

minor at the banks of Timbus River. But despite search, the police failed to trace out the minor girl. On further questioning, the accused admitted

that he had thrown his minor daughter after wrapping her in a blanket into the Suru River on 9th May 2002 at about 11 PM at the place Timbus

with an intention to kill her and had used taxi van bearing registration No. JK04/2838. The Investigating Officer conducted investigation and

produced the accused before the Judicial Magistrate, 1st Class, Sankoo, Kargil, and got his statement recorded u/s 164 of Cr.P.C. The accused

confessed the guilt. After conducting the investigation, the Investigating Officer came to the conclusion that accused is involved in the commission of

offences punishable under 302, 201 RPC and accordingly the challan was presented.

The Sessions Judge, Kargil, framed the charge sheet and read over the same to the accused who pleaded not guilty and claimed to be tried. The

prosecution was directed to lead evidence.

The prosecution has examined three witnesses i.e. PW1 Ghulam Hassan, PW3 Mohammad Hussain and PW6 Mohammad Hussain till 18th

September 2002.

On 18th September, 2002, accused filed an application before the trial court wherein it appears that accused has stated that he confesses the

guilt. The trial court recorded his statement on the same date.

The trial Court, without examining other witnesses and without closing the evidence of the prosecution, convicted the accused on next date i.e.

19th September, 2002 for the commission of offence punishable u/s 302 RPC and also sentenced the accused to simple imprisonment for life.

Heard Considered. Perused.

The moot question for consideration is whether the trial court has passed the impugned judgment rightly and in accordance with the provisions of

law.

It appears that on 18th September, 2002, the accused has moved an application wherein he has only made a mention that he confesses the guilt

without giving the details how and in which manner he committed the crime. The trial Court, without exercising caution and ascertaining that

whether the accused has made the confessional statement voluntarily, recorded the 'plea of guilt'.

The trial court has to exercise caution and has to apply 'double test' that whether the confession is made voluntary and whether it is truthful and

trust-worthy. This view is fortified by the Apex Court judgment reported in AIR 1978 SC 1248. It is profitable to reproduce para-22 of the said

judgment herein:

This confession was retracted by the appellant when he was examined at the trial u/s 311, Cr.P.C. on June 14, 1975. It is well settled that a

confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction

of the accused, primarily on the basis of his confession recorded u/s 164, Cr.P.C., the Court must apply a double test:

(1) Whether the confession was perfectly voluntary?

(2) If so, whether it is true and trust-worthy?

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any

inducement threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the

question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession,

reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that mater of any substantive

piece of evidence, there is no rigid canon of universal application. Even, so, one broad method which may be useful in most cases for evaluating a

confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the

surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable

catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the

second test.

Keeping in view the above discussion, one comes to an inescapable conclusion that the trial court has not applied the test.

It is profitable to notice Rules 2, 3 and 7 of Chapter XII contained in Rules and Order for Guidance of Courts Subordinate to the High Court

(Criminal) herein.

(i) When translation must be made. - When such language is not the language of the Court as determined by His Highness u/s 558 of the Code

of Criminal Procedure, or the language prescribed by an order u/s 357 of the Code, the record of the statement or confession should, ibn all

appealable cases, be translated into the language of the district, or into the English language where the Session Judge or Magistrate ordinarily

writes his proceedings in English, and such translation should be authenticated by the signature of the translator and also of the Judge or Magistrate

before whom the statement of confession is made, (ii) The statement or confession should ordinarily be recorded in open Court and during Court

hours unless for exceptional reason. No Police Officer should, however, be present except by special request of the Magistrate.

How to taken down - The statement or confession should be written down fully and accurately, and if not written by the Magistrate with his own

hand, the Magistrate should, as the examination proceeds make a memorandum of such statement or confession in the language of the Court or in

English with his own hand and under his signature.

Certificate of Magistrate - The Magistrate shall then certify under his own hand that the statement or confession of the accused person was

made voluntarily; that it was taken in his presence and hearing; that it was read over to him and was admitted to be correct, and that it is a full and

true account of the statement made by the accused.

In terms of the mandate of these Rules, the trial court had to record a certificate after closing the statement that the so-called confessional

statement was made by accused voluntarily.

The statement was to be recorded by the trial judge in his own hand and in presence of the accused and was to be read over to the accused.

The judge had to record that the accused admitted it to be correct and it is a full and true account of the statement made by the accused. The trial

court had to record a certificate to that effect also. Neither the said certificate has been recorded nor the statement has been recorded by the trial

judge in his own hand. Thus, the trial court should not have acted and relied upon the said so-called confessional statement.

While going through the statement, it appears that same has been recorded by the clerk of the Court and the trial court has not recorded the

certificate that the said statement was recorded on his dictation and under his supervision.

It appears that the trial court has, adopted a novel procedure and not taken the case seriously and taken the case in a casual manner. It

appears, as discussed above, that accused/appellant has moved an application on 18th September, 2002 and the trial court has recorded the

statement on the same date and convicted the accused on 19th September, 2002. But while going through the statement, it appears that the trial

court has firstly recorded the statement on two pages and closed the statement by writing ROAC and has affixed his signatures after ROAC. Then

it appears that the trial court has recorded rest part of the statement and that statement contains the word [URDU WORDS]. This means that

either the statement of the accused was deferred on the said date and then on other date the rest part of the statement was recorded or it was

deferred on the same day and then after some time the rest part of the statement was recorded. But while going through the interim orders and the

impugned judgment, it is nowhere mentioned that why the statement was deferred and how the so-called [URDU WORDS] came to be recorded.

Even while recording the statement on first two pages and after recording 'ROAC', it is nowhere mentioned in the said statement that statement of

the accused was deferred. This suggests that the trial court has passed the impugned judgment in hot haste and without application of mind.

Dwelling upon the another aspect of the case that the Court has a duty to evaluate the evidence concerning the confession by looking at all

aspects. The trial court has not gone to the other evidence and to the aspect that the accused had denied the charge when the contents of charge

sheet were read over the accused.

Chapter 23 of Cr.P.C., 1989 (1933 A.D.) deals with trial before a Court of Sessions. This chapter contains Sections 266 to 277 and it

mandates how to conduct the trial in Sessions trial cases.

Section 269 Cr.P.C. mandates how to frame the charge and it is obligatory on the part of the trial court to read over and explain the contents

of the charge to the accused and if the accused pleads guilty, the judge is under legal obligation to record the plea of guilt in the same words used

by the accused and it is the discretion of the judge to convict the accused.

The accused cannot be convicted on the basis of ""plea of guilty"" unless the Court takes the precautions and ascertains whether the copies of all

the documents on which prosecution relies were furnished to the accused and whether he had perused them. It is the duty of the Court to question

the accused on all evidence of the prosecution while recording the ""plea of guilty"" in order to find out whether the accused understood the nature of

the offence(s). This view is fortified by the Apex Court judgments reported in Mahant Kaushalya Das Vs. State of Madras, and Podan and Others

Vs. State of Kerala, .

Section 271 Cr.P.C mandates that if accused refuses to plead guilty or if accused is not convicted in terms of mandate of Section 270 Cr.P.C.,

referred hereinabove, the court has to examine witnesses and fix a date for recording evidence. In terms of mandate of Section 272 Cr.P.C., the

evidence of the prosecution is to be examined. The judge can record order of acquittal if there is no evidence connecting the accused with the

commission of offence as per the mandate of Section 273 Cr.P.C. And if accused is not acquitted then accused is to be asked to enter upon his

defence. And after recording the defence evidence the trial Court has to hear the arguments and pass the order of acquittal or conviction while

keeping in view the mandate of Sections 275 and 276 Cr.P.C.

In view of the above discussion, one comes to inescapable conclusion that when the Court has asked the prosecution to lead evidence the

Court cannot record conviction on the basis of plea of guilty without recording the evidence or closing the evidence of prosecution.

In the given circumstances, we are of the view that the trial court should not have convicted the accused/appellant on the 'plea of guilty' and

should have exercised discretion in favour of holding the trial rather than convicting the appellant while keeping in view the mandate of Section 270

Cr.P.C. This view is fortified by the judgment reported in 1998 SLJ 295 (Abdullah Jhat v. State). It is profitable to reproduce para-19 and

relevant portion of para-24 of the said judgment herein:

Next, the second facet of this question centres around Section 270 of Code of Criminal Procedure, 1989. Learned Counsel for the accused

contended that even when the accused had pleaded guilty, Sessions Judge should not have exercised his discretion to convict him per practice

followed by courts in India in such serious cases, the discretion should have been exercised for proceeding with the trial and recording of the

evidence. Having examined this question in detail, we are of the opinion that there is force in the grievance of the accused. Looking to the

seriousness of the case, state of the accused, his habitat, the Sessions Judge should not have convicted the accused on his plea of guilty and

judicious exercise of discretion should have been in favour of holding the trial rather than convicting him on his plea of guilty.

24...Further, it is also found that provisions of Sub-section (2) of Section 269 of Code of Criminal Procedure, 1989, have been violated since the

charge has not been read and explained to the accused and that option to claim trial has not been offered to him.

This omission has also caused serious miscarriage of justice vitiating trial. Again, discretion vested with the court u/s 270, Code of Criminal

Procedure, 1989 should have been exercised in favour of holding the trial rather than convicting him on his plea of guilty looking to the serious

nature of the case, state of the accused and his habitat. This has been the result of non-adherence to the mandatory provisions of law and undue

haste adopted by the court while dealing with the case. It is also found that examination of accused regarding his plea of guilty has not been on

desired lines resulting in serious prejudice to the accused etc etc.

The same view has been taken by other courts also. It is profitable to notice some of the decisions herein.

In Prakash Chandra Dutta Vs. District Magistrate and Another, it is held that;

Section 229 confers a discretionary jurisdiction on the court to accept a plea of guilty and to act upon it. This discretion has to be exercised with

care and circumspection and on sound judicial principles, bearing always in mind the ultimate objective which is to do justice to the accused. The

more grievous is the nature of the charge to which the accused is required to plead guilty, the more care and circumspection is expected to be

exercised by the court in accepting and acting upon the plea of guilty.

The first duty of the court before accepting a plea of guilty is to satisfy itself with respect to the voluntary nature of the plea. It is most desirable that

the courts do not show undue haste in accepting a plea of guilty. They must allow reasonable time to the accused to ponder and deliberate after the

charge is framed and explained to him. Even if the accused makes a formal plea of guilty, prudence requires that the court must adjourn the case

especially when the accused is produced in custody and the offence involved is a serious one and more so in a case of murder. After the court is

satisfied that the accused is free from all external influence, it should explain the charge to the accused in simple and clear language and must ensure

that the accused appreciates the nature of the offence to which he is required to plead guilty. A plea of guilty put forward to a charge of murder

should not be accepted unless the meaning of this technical term as defined in Section 300 of the Penal Code is explained to the accused and

understood by him. It cannot be gainsaid that a mere causing a death of another person would not necessarily amount to murder. It will so amount

only if it is caused with a particular intention or knowledge as mentioned in Section 300 of the Penal Code. Such intention or knowledge must,

therefore, specifically find mention in the plea of the accused before the same is accepted concerning a charge of murder. An accused may

legitimately harboud under the impression that every type of homicide would amount to murder and if under that impression he pleads guilty to a

charge of murder, it would be no plea in the eyes of law on which a conviction u/s 302 I.P.C. can be maintained.

In Ramesan Vs. State of Kerala, the Court held in para 13 that;

The rule of practice adopted by the various High Courts is not acting upon a plea of guilty in case of serious offences of murder is a rule of

caution and prudence. An offence of murder involves not only the physical act of violence but also the mental element of intention or knowledge. A

lay accused, when he pleads guilty is likely to be more concerned with the physical act and may not advert to the various ingredient constituting the

offence. As mentioned in Dalli Vs. Emperor, whether act constitutes murder is a mixed question of law and fact. The Court while holding an

accused guilty of murder should also enter a finding that he did the act with the requisite intention or knowledge. For such a finding to be entered

and to decide whether offence is murder or a lesser offence, the court should have before it the details of the occurrence, the circumstances under

which the act was done and the motive if any and for this purpose it is desirable that the entire evidence is placed before the court.

Keeping in view the above discussion, we are of the view that impugned judgment and order merit to be set-aside and appeal merit to be

accepted and reference merit to be replied accordingly.

In view of the above discussion, the impugned judgment and the impugned order are hereby set-aside.

At this stage, Mr. R.A. Jain and N.A. Beigh, Amicus Curiae on behalf of the appellant/accused, requested the appellant is extremely poor be

admitted to bail and also the Sessions Judge, Kargil, be directed to appoint a defence counsel as Amicus Curiae.

We are also of the opinion that in the given circumstances of the case it will be in the interests of justice to admit the accused to bail.

Accordingly, the accused is admitted to bail subject to furnishing of bail bond to the tune of Rs. 20,0007- with one surety of the like amount to the

satisfaction of Sessions Judge, Kargil. The order of granting bail should not be cited as a precedent in order to claim bail in such other cases.

Sessions Judge, Kargil, is directed to appoint a competent lawyer as amicus curiae so that accused can defend his case and direct Legal

Services Authority to pay fee to the said counsel and to conclude the trial within a period of six months from the date the file comes up before the

trial court.

The case shall come up before the Court of Sessions Judge, Kargil on 1st December, 2005.

Registrar Judicial is directed to inform the Superintendent, Central Jail so that accused can be produced before the trial Court on 1st day of

December, 2005.

The registry is directed to send down the record of this case along with a copy of this judgment.

Accordingly, the appeal is accepted and reference is answered.