Police Officer in Room Voids Confession: Gauhati HC Acquits Three of Murder After 30-Year-Old Sessions Conviction
A Division Bench of the Gauhati High Court set aside murder convictions resting entirely on Section 164 confessions recorded while a police officer was present in the room, holding the statements inadmissible and the extra-judicial confessions uncorroborated.
A Division Bench of the Gauhati High Court, comprising Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma, has acquitted three men convicted of murder by the Sessions Judge, Karbi Anglong at Diphu, in a case originating from December 1989. The Sessions Court had convicted Chandra Rongphar, Jaysing Engti, and Bidyasing Tisso under Sections 302/34 IPC by its judgment dated 19 January 2018 in Sessions Case No. 9/1993. The entire conviction rested on confessional statements recorded under Section 164 of the Code of Criminal Procedure. The High Court found that a police officer was present in the room when those confessions were recorded — a direct violation of the safeguards laid down by the Supreme Court — rendering the statements inadmissible. With no other evidence on record, the convictions could not stand.
The Case Before the High Court
The four appellants had originally all been convicted. During the pendency of the appeal, appellant no. 1, Jiten Engti, was found to be a juvenile and was referred to the Juvenile Justice Board by order dated 11 December 2019 in I.A.(Crl.) No. 377/2019. The remaining three — Chandra Rongphar, Jaysing Engti, and Bidyasing Tisso — continued before the Division Bench.
The appellants are residents of village Paklangso, P.O. Bokajan, district Karbi Anglong, Assam. The deceased was the father of prosecution witnesses PW-1 and PW-2. According to the prosecution's case, the deceased was called to a meeting at night in December 1989 and was later found dead in a nearby field with injuries to both eyes and mouth. An FIR was filed at Bokajan Police Station.
Counsel for appellants nos. 2 and 3, Mr. G. Rahul, and counsel for appellants nos. 1 and 4, Mr. T. Kalita, argued that the sole basis for conviction was the Section 164 confessional statements made by appellants nos. 1, 2, and 3. Appellant no. 4, Bidyasing Tisso, had made no confessional statement at all; he was convicted solely because he was named as a co-perpetrator in the confessions of appellants nos. 2 and 3. The defence submitted that the confessions had not been recorded in compliance with the principles set out by the Supreme Court in Rabindra Kumar Pal Alias Dara Singh v Republic of India, reported in (2011) 2 SCC 490, and a coordinate bench of the Gauhati High Court in Khagen Buragohain v State of Assam, reported in (2014) 4 GLR 277.
The Additional Public Prosecutor, Ms. B. Bhuyan, Senior Counsel, conceded that all procedures had been followed except one: a police officer was present in the courtroom at the time the confessional statements were recorded. She sought to sustain the conviction on the basis of extra-judicial confessions allegedly made by the appellants to PW-1 and PW-2, the sons of the deceased.
The Section 164 Violation: Police Presence in the Recording Room
The Division Bench examined the record and found that the recording Magistrate had expressly noted that the appellants were brought by Sub-Inspector of Police Salil Ahmed and that the said police officer was present at the time the confessional statements were recorded. This was not disputed.
The bench referred to the eleven principles laid down by the Supreme Court in Rabindra Kumar Pal for recording confessions under Section 164. Principle (ix) states plainly that at the time of recording the statement of the accused, no police or police official shall be present in the open court. The Supreme Court had also held in that case that the provisions of Section 164 must be complied with not only in form, but in essence.
The bench also noted an additional irregularity specific to appellants nos. 2 and 3. Before recording their confessions, the Magistrate gave them reflection time — but placed them in the charge of an armed police constable during that period. Principle (viii) of Rabindra Kumar Pal requires that during the reflection period, the accused must be completely out of police influence. This aggravated the infirmity for those two appellants, though the bench noted that appellant no. 1 had been placed in the charge of the Magistrate's peon during reflection, not a police constable.
The coordinate bench in Khagen Buragohain had already held that a statement cannot be said to be properly recorded under Section 164 if a police officer is present or allowed to be present at the time of recording. The Supreme Court in State of Maharashtra v Damu, reported in (2000) 6 SCC 269, had further held that a Magistrate proposing to record a confession must ensure it is free from police interference.
On these findings, the Division Bench held that the confessional statements were not voluntary and could not be relied upon as substantive admissible evidence. Non-compliance with Section 164, the bench observed, goes to the root of the Magistrate's jurisdiction to record the confession and renders it unworthy of credence.
Extra-Judicial Confessions: Uncorroborated and Doubted
The prosecution's fallback position was the extra-judicial confessions allegedly made by the appellants to PW-1 and PW-2 approximately one and a half months after the killing. PW-1 stated that the accused came and confessed to having killed his father, and that the confession was made in the presence of Kitan Toksi, Puta Tissoo, Man Kathar, Key Engti, his brother, and their wives. PW-2 gave similar evidence.
The bench found that Kitan Toksi, Puta Tissoo, and the wives of PW-1 and PW-2 were not made prosecution witnesses and gave no evidence of any confession. PW-5 and PW-8, who were present according to PW-1's account, also did not corroborate the extra-judicial confession. The Trial Court itself had observed that PW-1 and PW-2 had not told the police that the appellants came to their house and confessed, and had expressed doubt about whether any extra-judicial confession had been made at all.
The Division Bench applied three Supreme Court decisions on the weight of extra-judicial confessions. In Kushal Toppo v State of Jharkhand, reported in (2019) 13 SCC 676, the Supreme Court held that an extra-judicial confession is a weak piece of evidence and an accused cannot be convicted on its basis in the absence of other reliable evidence. In State of Punjab v Kewal Krishan, reported in (2023) 13 SCC 695, the Supreme Court held that a conviction is not ordinarily to be recorded solely on the basis of an extra-judicial confession. In Nikhil Chandra Mondal v State of West Bengal, reported in (2023) 6 SCC 605, the Supreme Court held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful.
The bench found no reason to depart from the Trial Court's own doubts about the extra-judicial confessions, given the complete absence of corroboration from the witnesses who were allegedly present.
Conviction of Appellant No. 4: No Independent Evidence
Bidyasing Tisso, appellant no. 4, had made no confessional statement. His conviction rested entirely on being named as a co-perpetrator in the confessions of appellants nos. 2 and 3. Once those confessions were held inadmissible, the question was whether they could still be used against him under Section 30 of the Evidence Act.
The bench referred to the coordinate bench decision in Bogai Bouri v State of Assam & Ors., reported in 2017 (2) GLT 1, which had held that Section 30 of the Evidence Act permits a court to take into consideration a co-accused's confession against another accused only after the court first finds that a conviction can be based on the evidence against that other person. The confession of a co-accused can then be used only to lend assurance to that other evidence — not as a primary basis for conviction.
That principle traced back to the Constitution Bench of the Supreme Court in Haricharan Kurmi v State of Bihar, reported in AIR 1964 SC 1184, which had held that the proper approach is to first consider the other evidence against the accused, and only if that evidence appears satisfactory should the court turn to the co-accused's confession for assurance.
Since there was no other evidence against appellant no. 4 apart from the inadmissible confessions of appellants nos. 2 and 3, the bench held that his conviction was equally unsustainable.
Outcome
The Division Bench allowed the criminal appeal and set aside the judgment dated 19 January 2018 passed by the Sessions Judge, Karbi Anglong at Diphu, in Sessions Case No. 9/1993. The convictions of Chandra Rongphar, Jaysing Engti, and Bidyasing Tisso under Sections 302/34 IPC were quashed. The State of Assam, as respondent no. 1, was directed to ensure that the appellants are released from judicial custody immediately, provided they are not wanted in any other case. The Trial Court Record was directed to be sent back.