Judgment:
Debiprasad Sengupta, J.
1. This appeal is directed against the Judgment and order of conviction and sentence dated 14,05.1997 passed by the learned Additional Sessions Judge, Jalpaiguri in Sessions Trial No. 47 of 1996 (Sessions Case No. 74 of 1996) thereby convicting the accused appellant under Section 302 and 201 of the Indian Penal Code and sentencing him to suffer R.I., for life for the offence under Section 302 IPC, and to suffer R.I. for 2 years for offence under Section 201 IPC. Both the sentences were directed to run concurrently.
2. The prosecution case, in short, is that accused appellant Biplab Chanda married victim Dipali and brought her to his house. This was a love marriage but it was accepted by the other brothers of Biplab Chanda, who were the members of a joint family. The eldest brother of the accused namely Dipak Chanda. who was a school teacher, used to stay at a different place and during Durga puja on the Navami day he came home and learnt that following a quarrel with Biplab, his wife Dipali had left for her father's house. On 13.10.95 victim Dipali again came back to her matrimonial home along with her father Subal Pal. After dinner Biplab and his wife Dipali went to their room, which was situated in the ground floor attached to the kitchen. Dipali's father Subal Pal was accommodated in the room of another brother Aloke Chanda. On 14.10.95 in the early morning at about 5.30 A.M. being attracted by the cry of their mother, the eldest brother Dipak Chanda came to the place and found the deadbody of Biplab's father-in-law Subal Pal lying with bleeding injuries on the ringwell platform in front of Biplab's room. On being asked by Dipak, the accused Biplab confessed that he had committed murder of his father-in-law Subal Pal. On further query as to the where-about of Dipali, accused Biplab further confessed to his elder brother Dipak Chanda that he had also murdered his wife Dipali and threw away her deadbody in the nearby doba. Dipak Chanda then sent his another brother Shulav to inform the police through one Amal Sarkar, who was an advocate and a resident of the same locality, Amal Sarkar along with others thereafter reached the house of the accused and in their presence, Biplab confessed that he had committed dual murder with help of an iron rod (sabal) and threw away the deadbody of Dipali as also the weapon of assault (sabal) in the doba.
3. The Inspector In-charge of Kotwali P.S. reached the place of occurrence on receipt of telephonic information from Sri Amal Sarkar, Advocate (P.W.10). The statement of Dipak Chanda (P.W.I) was obtained by the Inspector In-charge of the P.S. and the same was forwarded to the police station and on the basis of such statement. FIR was registered.
4. To bring home the charge against the accused appellant, prosecution examined as many as 21 witnesses and none was examined on behalf of the defence. The defence of the accused, as it appears from the trend of cross-examination of the witnesses, was a plea of innocence and false implication. It was his further defence that no extra-judicial confession was made by the accused and that sometime prior to the date of incident, the accused had been suffering from mental insanity.
5. P.W. 1 Dipak Chanda is the defacto-complainant of the case and he is the eldest brother of accused Biplab Chanda. He stated in his evidence that his younger brother Biplab married Dipali Pal, daughter of Subal Pal of Falakata. When he came home, he found Dipali living with Biplab in their house and their love marriage was accepted by other members of the family. During Durga puja on the Navami day, when P.W. 1 again came to his home with his wife, he knew from his mother that Dipali had left for her parents' house following a quarrel with Biplab, It is in his evidence that on 13.10.95 Dipali again came back to her matrimonial home along with his father Subal Pal. Subal Pal had talked with P.W. 1 as also with Biplab. In the night after dinner P.W. 1 went upstairs to take rest and Biplab and his wife stayed in a room in the ground floor. Subal Pal was accommodated in another room of his brother Aloke Chanda. In the next morning at about 5.30 A.M. P.W. 1 heard the cry of his mother Binapani and he found that victim Subal Pal was lying dead with bleeding injuries on the ringwell platform. He also found Biplab standing on the varandah in front of his room and on being asked by P.W. 1, Biplab stated that he had murdered his father-in-law Subal Pal. On further query by P.W. 1, Biplab stated that after murdering his wife Dipali, he threw her deadbody in the doba. P.W. 1 then sent his another brother Shulav (P.W. 15) to call Amal Sarkar, Advocate and a resident of the same locality to inform the matter to the police over telephone. He further stated that Amal Sarkar (P.W. 10) along with Kartick Biswas (P.W.9), Mantu Deb, Sadhan Sarkar, Tulsi Das and some others came to the house of P.W. 1 and they found Biplab at home. P.W. 1 told the said witnesses that Biplab confessed that he had murdered his father-in-law and his wife. P.W. 2 Sankar Biswas was a man of the neighbourhood and he turned hostile P.W. 3 was the A.S.I, of Police, who received the telephonic information at about 06.10 hours on 14.10.95 and recorded the same in the G.D. (Exhibit - 5). P.W. 4 was a constable, who was a formal witness and he carried the deadbodies to the hospital for P.M. examination. P.W. 5 Smt. Gayetri Chanda was the wife of P.W. 1. She was declared hostile by the prosecution but she affirmed that in the morning at 5.00/5.30 A.M. hearing a shout, she found the deadbody of an old man on the ringwell platform, her knowledge that Dipali's deadbody was found in the doba and seizure of a lungi, bed cover, pillow from Biplab's bedroom by the I.O. in her presence. P.Ws. 6, 7 and 8, although they were persons of the same locality, were declared hostile by the prosecution. P.W. 9 Kartick Biswas was also declared hostile but he said that on hearing the incident of dual murder committed by Biplata, he came to the house of accused and found the deadbody of Subal Pal on the ringwell platform and deadbody of Dipali in a doba. He also found accused Biplab present at home. P.W. 10 Amal Sarkar was a very important witness in the present case and he stated that on 14.10.95 at about 5.00 A.M. P.W. 15 Shulav Chanda came to his house and told him that his brother Biplab had committed murder of his wife and father-in-law. He further stated that he was requested by P.W. 15 to inform the police. P.W. 10 then along with Kartick Biswas (P.W.9) came to the house of another advocate, Monotosh Bhowmick and from his house he informed the Officer on duty in the P.S. over telephone. After giving such information, P.W. 10 came to the house of accused Biplab and he found the deadbody of Subal Pal lying with bleeding injuries on his head at the ringwell platform. He further stated in his evidence that on interrogation by Dipak Chanda and the members of the public, accused Biplab confessed that he had committed murder of his father-in-law and wife by a 'sabal'. P.W. 11 Aloke Chanda, although he was declared hostile by the prosecution, corroborated P.W. 1 in all material particulars except the extra-judicial confession made by Biplab.
6. P.W. 12, Dr. N. Dutta was the Autopsy Surgeon. He held post mortem over the deadbody of Subal Pal and found the following injuries:
1. Wound 4' x 2' with regular inverted margin lying almost vertically from the root of the nose over forehead. The underlying frontal bone was fractured and bone fragments had entered into the brain matter. Skull both was full of blood.
2. Wound 2' x 1/2' over forehead 2' above the middle of the right eyebrow with inverted regular margin. The underlying bone was fractured with injury of membrane and brain tissues.
3. Lacerated wound l 1/2' x 1/2' over forehead just above the outer aspect of the right eye-brow.
4. Lacerated wound 1' x 1/4' over forehead just above the outer aspect of the left eye brow.
5. Depressed fracture of nasal bone.
7. In the body of Dipali, P.W. 12 found the following injuries :
1. Wound 3' x 2' with interpreted regular margin lying over frontal scalp 2 1/2' above the roof of the nose in the medline. There was haematoma with blood clots which resorted washing. The underlying frontal bone was fractured and fragments had entered into the skull bones. Blood inside the skull was present.
2. Lacerated wound 2 1/2' x 1' with blood clots which resisted washing 1' above the mid point of eye brow.
8. P.W. 12 opined that the injuries were homicidal and might be caused by a blunt object like a 'sabal'.
9. P.W. 13, the A.S.I, of Police, Mr. M.N. Mahato was a formal witness and he drew up the FIR on the basis of the written complaint, of P.W. 1. P.W. 15 Shulav Chanda younger brother of P.W. 1 was declared hostile as he was very much interested to see his brother acquitted of the charge. He went to the extreme by saying that he did not know anything about the incident. P.W. 16 was the photographer. P.W. 17 Sadhan Sarkar corroborated P.W, 10 and he stated about the extra judicial confession made by the accused Biplab. P.Ws. 18 and 19 were the residents of Falakata and they were neighbours of deceased Subal Pal. P.W. 18 stated in his evidence that Subal came to him with a letter which was received from accused Biplab. He was requested by Subal Pal, since deceased, to accompany him to the house of P.W. 19 Sushil Sarkar to have the letter read out. P.W. 18 took Subal Pal to the house of P.W. 19 and P.W. 19 read out the letter written by Biplab, in which Biplab asked his father-in-law Subal Pal to bring back Dipali to his house as it would not be possible for Biplab to go to Falakata to bring back Dipali. Accordingly on the next day, Subal Pal alongwith Dipali started for the matrimonial home of Dipali. P.W. 20 Biplab Roy was declared hostile but he affirmed the seizure of blood stained pillow, blood stained lungi, blood stained bed-sheet and mattress by the I.O. P.W. 21 was the Investigating Officer of the case and on completion of investigation, he submitted charge sheet against the accused Biplab Chanda under Section 302 IPC.
10. It is argued by the learned advocate of the appellant that the telephonic information was recorded in the G.D. Entry No. 842 dated 13.10.95 and such G.D. Entry being earlier in point of time should have been treated as FIR. Even if such contention is accepted we find that, the G.D. Entry, which is the outcome of telephonic message received from P.W. 1, does not materially differ from the FIR. So even if such G.D. Entry is treated as FIR, the prosecution case is not affected in any way. So far as the extra judicial confession made by the accused is concerned, it is submitted by the learned Advocate of the appellant that such extra judicial confession was made only before P.W. 1 and not before any other witnesses and such extra judicial confession was made in presence of the police. But we are unable to accept such contention. P.W. 1 the eldest brother of the accused was an aged school teacher and he stated in his evidence specifically that on being attracted by the cry of his mother, he came to the place and found Subal Pal's deadbody on the ringwell platform and he also found Biplab standing on the varandah of the house. P.W. 1 specifically stated that on being asked by him, accused Biplab stated that he had murdered his father-in-law and on further enquiry about Dipali, the accused stated that after murdering his wife, he threw her deadbody in the doba. P.W. 1 is the eldest brother of the accused and we do not find any reason to disbelieve such a witness. There is nothing in the evidence on record to show that P.W. 1 has any enmity with his accused brother. It is also in the evidence that P.W. 1 thereafter sent P.W. 15 to call Amal Sarkar (P.W. 10) an advocate and resident of the same locality and a telephonic information was sent to the police station by Amal Sarkar. P.W. 10 thereafter came to the place of occurrence and found the deadbodies of the victims. None of the witnesses said about the presence of police at that point of time when such extra judicial confession was made. Thus, it is very much clear that at about 5.30 A.M. itself, accused Biplab made extra judicial confession before P.W. 1, his own eldest brother for the first time and such confession was made much before the arrival of the police. P.W. 10 and P.W. 17 stated in their evidence that on interrogation by the members of the public, Biplab again made a confession that he had committed the dual murder.
11. The learned Advocate of the appellant relies upon a Judgment of the Hon'ble Supreme Court reported in : 2003CriLJ3901 State of Rajasthan v. Rajaram. In the said Judgment, it was held that an extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case. The learned Advocate of the appellant also relies upon a Judgment of the Hon'ble Supreme Court reported in 2000 Calcutta Criminal Law Reporter (SC) 56 State of Punjab v. Gurdeep Singh. In the said Judgment, the material question before the Hon'ble Court for decision was whether the extra judicial confession of the accused was sufficient for the conviction of the accused.
12. We have gone through the said Judgments as referred to above. The principle of law now is very much settled by the Hon'ble Apex Court that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and was made in a fit state of mind. An extra judicial confession by its very nature is no doubt a weak piece of evidence and requires appreciation with great care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful. The Court generally looks for independent reliable corroboration before placing any reliance upon an extra judicial confession before convicting an accused. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of circumstances of each case.
13. After scrutinising the evidence of P.Ws. 1, 10 and 17 before whom such extra judicial confession was made, we do not find any reason to disbelieve such witnesses. P.W. 1 was the eldest brother of the accused. P.Ws. 10 and 27 are also the respectable persons of the locality. We find that such extra judicial confession made by the accused was voluntary in nature and the same is acceptable in evidence.
14. The next argument advanced by the learned Advocate of the appellant was that accused Biplab was mentally unsound at that particular point of time and was under treatment. When the plea of insanity is raised, the Court has to consider whether the accused has established that at the time of commission of offence, he was of unsound mind. If he does not succeed, the plea fails. In the present case no evidence was adduced by the defence on the plea of insanity and there is no medical evidence to show that at the time of commission of the offence, the accused was of unsound mind and as such the accused is not entitled to get the protection under Section 84 of the Indian Penal Code.
15. The learned Advocate appearing for the State/Respondent submits that the present case is mainly based on extra judicial confession corroborated by other circumstantial evidence. The chain of circumstances with no missing link proves that it was accused Biplab who committed murder of Subal Pal, his father-in-law and Dipali, his wife. Even if the G.D. Entry is treated as FIR, it does not affect the prosecution case in any way. The plea of insanity taken after a lapse of 7/8 years and such plea was never taken at the initial stage and no supporting document could be produced by the defence to prove the plea of insanity. The extra judicial confession made by the accused before the witnesses was voluntary and was made in a fit state of mind and conviction of the accused can be made on the basis of such extra judicial confession only. According to the learned Advocate of the State/ respondent, the impugned Judgment and order of conviction and sentence does not suffer from any illegality and the present appeal having no merits should be liable to be dismissed,
16. We have heard the learned Advocates of the respective parties. We have also scrutinised the entire evidence on record. The present case is mainly based on extra judicial confession, which is corroborated by other witnesses. We do not find any reason to disbelieve the witnesses, namely P.Ws. 1, 10 and 17 before whom such extra judicial confession was made by the accused. Such extra judicial confession was voluntarily made by the accused. Such confession was also corroborated by other circumstantial evidence as we have already discussed above. Plea of insanity, which was taken by the accused, also could not be proved by adducing evidence or by production of any supporting document.
17. After scrutinising the entire evidence on record, we do not find any reason to disbelieve the evidence of P.Ws. 1, 10 and 17 in whose presence such extra judicial confession was made. We also find that there are sufficient corroborating evidence to such extra judicial confession. The witnesses were cross-examined at length and nothing infirm could be elicited to cast even a slightest doubt on their veracity. There is no reason as to why the accused person would be implicated falsely by his own eldest brother. There was no suggestion even of any motive for such false implication. The totality of evidences of witnesses, specially the evidence of P.Ws. 1, 10 and 17, coupled with the medical evidence, makes it clear and sufficient to hold that it was accused Biplab, who committed murder of his father-in-law and his wife in the manner and at the place as alleged by the prosecution,
18. In our considered view, the impugned judgement and order of conviction and' sentence passed by the learned Trial Judge does not suffer from any illegality and we agree with the finding arrived at by the learned Trial Judge and accordingly, we affirm the same. The appeal accordingly fails and the same is dismissed.
Accused Biplab Chanda, who is now in jail custody, shall serve out the remaining period of his sentence.
A copy of this Judgment along with the L.C.R, may be sent down to the Court below immediately.
Arun Kumar Bhattacharya, J.
19. I agree.