Sumit vs State Of Uttarakhand

Ravindra Maithani, J

Applicant Sumit is in judicial custody in FIR No.154 of 2022 and Sessions Trial No.183 of 2022, under Sections 302 IPC, Police Station Premnagar, District-Dehradun. He has sought his release on bail.

Heard learned counsel for the parties and perused the record.

According to the FIR, on 06.06.2022, at 3:00 in the afternoon, the applicant killed the deceased Soniya. It is the prosecution case that on the date of incident, at about 7:20 PM, the applicant, on his own, visited the police station and confessed that he killed the deceased Soniya on that date. Thereafter, at the instance of the applicant, the dead body of the deceased was recovered.

Learned counsel for the applicant would submit that the alleged confession of the applicant is not admissible in evidence because at the time when allegedly disclosure was made, the applicant was not “an accused” and he was “not in custody”. Therefore, such confession may not be proved.

In support of this contention, learned counsel for the applicant has placed reliance upon the principles of law, as laid down in the case of Rajesh and Another Vs. State of Madhya Pradesh, 2023 SCC OnLine SC 1202, in which, under the similar facts, when the persons who made a disclosure were not accused, and were not in custody, the Hon’ble Supreme Court held that, “Therefore, it was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession.”

Learned State Counsel does not dispute the proposition of law.

Having considered, this Court is of the view that it is a case fit for bail and the applicant deserves to be enlarged on bail.

The bail application is allowed.

Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the court concerned.