Aktar Ali Vs. State of Assam - Court Judgment

Excerpt:
- - nair, representing the appellant from jail as well as mr. sessions judge having closely appreciated the materials evidence on record including close examination of the documents and materials exhibited before him as well as upon hearing the learned counsel for the parties, came to the conclusion that the prosecution proved its case against the appellant as regards the killing of sahera khatun beyond all reasonable doubt and accordingly, the accused-appellant was convicted and sentenced as indicated above. roy choudhury learned amicus curiae has strongly contended that since the impugned conviction of the accused-appellant is based on extra judicial confession as well as discovery of the offending article material ext, 1 on being led by the accused-appellant, the same cannot be..... aftab h. saikia, j.1. heard mr. p.k. roychoudhury, learned amicus curiae, who has been appointed in place of earlier appointed amicus curiae mr. p.d. nair, representing the appellant from jail as well as mr. k.a. mazumdar, learned p.p., assam.2. this appeal from jail has been carried from the judgment and order dated 29.12.06 passed by the learned addl. sessions judge (ftc) at sonitpur tezpur in sessions case no. 34/2006 by which the accused-appellant was convicted under section 302 of the indian penal code (for short 'the i.p.c.) and accordingly, he was sentenced to undergo imprisonment for life with a fine of rs. 2000/- and in default to undergo rigorous imprisonment for 2 months for committing the offence of murder.3. before delving upon the details pertaining to the challenge of.....

Judgment:

Aftab H. Saikia, J.

1. Heard Mr. P.K. Roychoudhury, learned Amicus Curiae, who has been appointed in place of earlier appointed Amicus Curiae Mr. P.D. Nair, representing the appellant from jail as well as Mr. K.A. Mazumdar, learned P.P., Assam.

2. This appeal from jail has been carried from the judgment and order dated 29.12.06 passed by the learned Addl. Sessions Judge (FTC) at Sonitpur Tezpur in Sessions Case No. 34/2006 by which the accused-appellant was convicted under Section 302 of the Indian Penal Code (for short 'the I.P.C.) and accordingly, he was sentenced to undergo imprisonment for life with a fine of Rs. 2000/- and in default to undergo rigorous imprisonment for 2 months for committing the offence of murder.

3. Before delving upon the details pertaining to the challenge of conviction and sentence so handed down by the learned Judge to the accused-appellant, it would be convenient to notice the facts of the case in a nutshell.

4. An FIR was lodged by one Ahmed Ali, P.W.1, with the In-Charge, Borghat O.P. under Tezpur Police Station on 10.11.05 alleging that on 9.11.05 at about 7.30 A.M. at Koroini Nepali Gaon the accused had a quarrel with his maternal uncle's daughter Sahera Khatun of the same village over an issue of drinking water and assaulted Sahera Khatun with a rod as a result of which she sustained grievous injuries on her head and she was immediately taken to Kanaklata Civil Hospital, Tezpur via the police station and was admitted for treatment where she succumbed to her injuries on the same day at about 2 p.m.

5. On the basis of the FIR abovementioned, the police registered a case being Tezpur P.S. Case No. 34/06 under Section 302 IPC and started investigation. On completion of investigation, police submitted chargesheet against the appellant under Sections 302 IPC.

6. The learned Judicial Magistrate 1st Class, Tezpur on receipt of such charge sheet so submitted by the police, committed the case to the Court of learned Sessions Judge, Tezpur on 15.2.06 as the case was being exclusively triable by the Court of Sessions. Case was made over to the learned Addl. Sessions Judge, FTC for disposal.

7. The learned Judge on appearance of the accused-appellant and also on perusal of the materials available on record including the police papers and also upon hearing the learned Counsel for the parties, framed charge against the accused-appellant under Section 302 IPC. The charge was read over to the accused appellant to which he pleaded not guilty and claimed to be tried.

8. During the trial the prosecution examined as many as 8 witnesses including two Government Officials namely P.W.6 Dr. Rama Mukut Keot who conducted autopsy on the dead body of Sahera Khatun and P. W. 8, Shri Ananta Das, the Investigating Officer (for short' the I.O. Accused/appellant was also examined under Section 313 Cr.P.C.

9. The learned Addl. Sessions Judge having closely appreciated the materials evidence on record including close examination of the documents and materials exhibited before him as well as upon hearing the learned Counsel for the parties, came to the conclusion that the prosecution proved its case against the appellant as regards the killing of Sahera Khatun beyond all reasonable doubt and accordingly, the accused-appellant was convicted and sentenced as indicated above.

10 Assailing the impugned conviction and sentence awarded by the learned Addl. Sessions Judge, Mr. P.K. Roy Choudhury learned Amicus Curiae has strongly contended that since the impugned conviction of the accused-appellant is based on extra judicial confession as well as discovery of the offending article Material Ext, 1 on being led by the accused-appellant, the same cannot be sustained in view of the fact that the testimony of the prosecution witnesses particularly, P.W.2 and P.W.-5 before whom it was claimed that the extrajudicial confession was made by the appellant, was not corroborated and inconsistent and the same did not inspire confidence.

11. His submission mainly is that the that extrajudicial confession as relied upon by the prosecution so testified by P.W. 2 and P.W-5 was not voluntary as both the P.Ws. 2 and P.W.-5 categorically stated that the appellant confessed of such guilt stating that had beaten up the deceased with a rod as he was beaten up by the public when he was caught. Besides more importantly except P. W-2 and P. W5 no other persons who were present amongst 50 people, as deposed by P.W 5 was examined for corroboration. That being the position, such extra judicial confession not being corroborative and voluntary cannot get approval in the judicial scrutiny.

12. So far as the discovery of the offending weapon Material Ext.-l is concerned, the deposition of the witnesses mainly P.W-1, (Md. Ahmed Ali), P.W-2(Md. Abdul Mannan) and P.W-5 (Md. Suleman Ahmed) narrated their different versions. Inviting our attention to the testimony of those abovementioned witnesses, it is contended that P.W-1 in his deposition stated that the accused himself produced the rod used in the incident in the PS. when P. W-2 in his cross-examination emphatically deposed that it was Suleman (P.W-5) who took out the Material Ext. 1 from a nearby jungle as shown by the acccused/appellant.

13. On the other hand P. W-5, Suleman while deposing as a prosecution witness stated that the police seized the rod from the place of occurrence where itself the signature appearing in the seizure list was taken and he did not know whether that sort of rod was found in other man's hand. According to the learned Amicus Curiae, a conjoint reading of the testimony of the witnesses would not inspire confidence to accept the version of the prosecution witnesses. In the above facts and circumstances, according to him, prosecution has miserably failed to prove its case beyond reasonable doubt and the appellant is entitled to get acquittal forthwith.

14. Per contra, the learned P.P. in support of the impugned conviction and sentence has straightway taken us to the medical evidence so adduced by P.W-6 Dr. Rama Mukut Keot.

15. It would be apt and necessary to notice the injuries so inflicted on the person of the deceased Sahera Khatun as found by Doctor P.W-6 at the time of conducting postmortem examination which are as follows:

1. Lacerated injury on forehead 3' long each (2 Nos).

2. Lacerated injury on right parietal area 4' long.

3. Lacerated injury over occupital area 2' long.

4. Lacerated injury on right ear 1'.

16. According to the learned P.P. taking into account the above injuries and also bearing in mind of the testimony of the witnesses so examined by the prosecution there is no doubt that the killing was done by the appellant himself and the same is also evident from the extrajudicial confession made by the appellant before P. W-2 and P. W-5. Under such circumstances, it is contended that the learned trial Court was wholly justified and correct in awarding the impugned conviction to the appellant.

17. We have meticulously examined and analysed the testimony of all the witnesses including the seizure list Ext.2 and Material Ext-l. Also we have heard extensive arguments so placed on record by the learned Counsel representing the appellant from jail and the State of Assam.

18. It appears from the record that the impugned conviction has been based prilimarily on the extrajudicial confession so made by the appellant before the P. W-2 and P.W-5.

19. Now let us examine what has been come out from the evidence of P. W-2 and P.W-5 as regards the extrajudicial confession of the appellant.

20. P. W-2 Md. Abdul Mannan in his deposition stated that he knew the deceased as well as the accused and at the relevant day at about 7.30 A.M. some four month ago he heard that the accused-appellant following a quarrel with Sahera had assaulted her and he was also informed that the woman who worked in his house was beaten up. On reaching there he found Sahera lying injured in front of her house after being beaten up. She was not in a position to speak at that time. He saw injuries on her head. When the accused tried to run away after beating her, people caught him. When he asked the accused he told him that he had beaten Sahera with a rod as she quarreled with him over an issue of water. He arranged a push cart (thela) and took Sahera to the police station and thereafter to the civil hospital where she expired.

21. At the same time P.W-5 Md. Suleman Ahmed while deposing stated that upon being asked, the people told him that they were beating the accused since he had assaulted Sahera. Asking them not to beat him, he informed police. When he asked the accused/ appellant he admitted that he had assaulted Sahera. Sahera was lying senseless on the road. He then put her on a thela (push cart) and sent her to hospital; first and then they had taken her to the P.S. and from there she was sent to the hospital. Later in the after noon he came to know that Sahera had expired.

22. It may also be mentioned that P. W-1 Md. Ahmed Ali who was the informant and lodged the FIR on 10.11.05 stated that he was informed about the incident by one Jamaluddin. In his cross-examination he specifically mentioned that he did not see assault on Sahera by the accused but it was Jamaluddin who had seen the incident. Significantly Md. Jamaluddin was not examined as prosecution witness. Reason therefore was best known to the prosecution. When the people started to assault the accused it was P.W-1 who debarred them and handed him over to the Ghat Thana.

23. An ordinary reading of evidence of all the three witnesses as mentioned above, would not persuade us to accept the same for the simple reason that all the three witnesses were incorroborated and inconsistent with each other in their respective versions. P.W-1 Md. Ahmed Ali stated that when the people started to assault the accused he debarred them and handed over him to the Ghat Thana whereas the P. W-2 and P.W-5 separately stated that they arranged a thela(push cart) and took Sahera to the P.S. and thereafter to the civil hospital. Under such circumstances we are unable to accept such extrajudicial confession as relied upon by the prosecution for conviction of the appellant.

24. The law on extrajudicial confession has already been established. In the process of proof of alleged confession the Court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances, to circumvent Sections 25 and 26 of the Evidence Act. The Court has to look into the surrounding circumstances and to find whether the extrajudicial confession is not inspired by any improper and collateral consideration and circumvention of the law suggesting that it may not be true one. The Court must scrutinize, for example, all the relevant facts such as the person to whom the confession is made, the time and place of making it circumstances in which it was made and the actual words used by the accused. The extrajudicial confession if found to be voluntary, can be relied upon by the Court alongwith other evidence on record and the conviction can be based thereon. The evidence furnished by the extra judicial confession made by the accused to the witnesses cannot be termed as fainted evidence and corroboration is required by way of abandoned caution.

25. An extra judicial confession, if voluntary can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness, to which it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness his capacity to understand the language in which the accused made the confession to accept the evidence or not.

26. The Courts have considered the extra judicial confession, a week piece of evidence. But when the evidence about extrajudicial confession comes from a witness unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which tend to indicate that he may have a motive for attributing and untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakable convey that the accused is the perpetrator of the crime and nothing is committed by the witness which may militate against it, then after subjecting the evidence of witness to a rigorous test on the touch stone of credibility if it passes the test the extra judicial confession can be accepted and made basis of conviction. (See (1) : AIR1975SC1320 (Maghar Singh v. State of Punjab). (2) State of U.P. v. M.K. Anthony : 1985CriLJ493 ; (3) Kishore Chandra v. State of Himachal Pradesh (1990)3 SCC 662 and (4) Baldeo Raj v. Haryana (1990) 4 SCC 524).

27. As regards the submission made on behalf of the appellant that the extrajudicial confession was not recorded by exact word or even the word as nearly as possible by P. W 2 and P.W-5, reliance has been placed upon a judicial pronouncement of the Apex Court in a case of CAT. Raveendran v. State of Karala reported in : 2000CriLJ497 . In paragraph 4 of the said cited case it was held that since the extrajudicial confession as deposed by P.W-15 in that case was not relied upon by the learned Sessions Judge and the High Court also came to the conclusion that it was difficult to rely upon the same as the exact words or even the words as nearly as possible was not reproduced by the said witness, such extrajudicial confession had to be excluded from the purview of consideration for bringing home the charge.

28. Having regard to the ratio of C.K. Raveendran's case (supra) and the established legal position relating to extra judicial confession, we have no hesitation to hold that in the case in hand the extrajudicial confession was not voluntary and even the same was not recorded in the exact word or even in the words as nearly as possible.

29. As regards the recovery of the offending article, P.W-1, P.W-2 and P.W-5 in their depositions placed on record their different versions which were full of inconsistencies and infirmities as already noticed. In this state of affair, the so-called noticed. In this state of affair, the so-called recovery of the offending weapon can hardly be said to be a clinching circumstances for coming to the conclusion that the prosecution case has been proved beyond reasonable doubt.

30. In view of the position we are not inclined to accept the prosecution case as regards the discovery of the offending weapon at the instance of the appellant. 28. In view of what has been stated, discussed and observed above, we are of the considered view that the prosecution has failed to make out a case on the basis of the testimony of the present set of witnesses as mentioned above for conviction of the accused-appellant under Section 302 IPC and accordingly, we have no hesitation to interfere with the impugned conviction and sentence so awarded by the learned Addl. Sessions Judge. Accordingly, the impugned conviction and sentence stands quashed and set aside.

31. The accused-appellant be set at liberty forthwith, if he is not required in any other criminal case.

32. In the result, the appeal is allowed.

33. Before parting with the judgment, we would like to put on record our appreciation to Mr. P.K. Roychoudhury, the learned Amicus Curiae for his valuable assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that he is entitled to get his professional fee which is quantified at Rs. 5000/-.

34. Send down the L.C.R forthwith.