S. Barman Roy, J.@mdashThis appeal is directed against the judgment dated 30-1-1989 passed by the learned Additional Sessions Judge, Kamalpur, North Tripura in Sessions Trial No. 20(W.T.K) 87 convicting the appellants, namely, Shri Indrajit Deb and Shri Nikhil Das u/s 302/34, I.P.C. and the appellant Sankar Deb u/s 302, I.P.C. and sentencing them thereunder to suffer rigorous imprisonment for life.
2. The case in short is that on 5-7-1984 at about 3.30 a.m. P.W. 1 Shri Pintu Kr Das lodged an F.I.R. at Kamalpur Police Station alleging, inter alia, that at about 11.00 p.m. on 4-7-1984 said informant along with some others were returning home after seeing cinema at Kamalpur town. While so returning, when they reached southern end of the house of Mahesh Das, they noticed some white substance lying by the road side. It further seemed to them that a person was lying by the road side. Then they requested P.W. 6 Gouranga Das, whose house was situated nearby, to bring a lamp and then P.W. 6 Gouranga Das brought a lamp and saw that Jogesh Deb (since deceased) was lying dead. They further saw blood. At that time, one Brajendra Das also came there with a torch light in his hand and with the help of that torch light they noticed the dead body thoroughly and found bleeding injury on the rear portion of the neck of the deceased which appeared to them to have been caused by, a sharp cutting weapon. Subsequently, many people assembled the. Afterwards P.W. 1 went to the house of P.W. 14 Shri Swaraj Kairi (Pradhan). After that they came to the police station and lodged the said information. Acting upon the said information, police registered an F.I.R. u/s 302, I.P.C.
3. Police after usual investigation submitted chargesheet against the 3 appellants under Sections 302, 109, I.P.C. In due course of time, the case was committed to the Court of the learned trial Court. Learned trial Court upon perusal of the materials on record, framed a charge u/s 302, I.P.C. against the appellant No. 2 Sankar Deb. Learned trial Court further framed a charge u/s 302/109, I.P.C. against the appellant Nos. 1 and 3. He also framed a charge u/s 302/34, I.P.C. against all the appellants. All the appellants pleaded not guilty to the said charges. In course of the trial prosecution examined as many as 19 PWs. Defence examined none. Defence of the appellants was that of complete denial of the prosecution case.
4. The prosecution case is based on a confession made by the appellant No. 1 Shri Indrajit Deb and recorded by P.W. 18 Shri N. Chakraborty, Sub-Divisional Judicial Magistrate. It is also based on some extra-judicial confession said to have been made by the appellant No. 1 to the officer-in-charge of the police station in presence of some of the witnesses. Corroboration in support of the prosecution version is also sought from the alleged recovery of a dao from the house of the appellant No. 2. It is also sought to be corroborated by recovery of some documents which are said to have been recovered by the police being led by the appellant No. 1. The whole case rests on the confession and the aforesaid materials on record.
5. So far as evidence of P.W. 1 is concerned, no further discussion is considered necessary inasmuch as he has reiterated the same story before the learned trial Court which he narrated in the F.I.R. does not disclose as to who committed the murder. However, it needs to be mentioned here that the appellant No. 1 happens to be the son of the deceased.
6. The prosecution story, as alleged, is that the deceased refused to maintain his son appellant No. 1, his wife his mother and other brothers. Deceased wanted to dispose of his properties depriving his son appellant No. 1 and other family members of the deceased. Further prosecution case is that deceased maintained a concubine and under her evil influence deceased was trying to dispose of all his properties. But prosecution could not adduce any evidence to prove this part of the prosecution case. In these circumstances, the appellant No. 1 requested the appellant Nos. 2 and 3 to kill the deceased and for that reason they would be given some money.
7. Evidence of P.W. 2 certainly needs some discussion. P.W. 2 Shri Ramesh Ch. Das Choudhury stated in his evidence that on the date of occurrence at or about 9/9.30 p.m. one Amrita Das informed him that somebody had murdered deceased Jogesh Deb. Soon after that P.W. 2 requested Amrita Das to inform the son of the deceased. After that the appellant No. 1 being the son of the deceased was brought to the house of P.W. 2 and both of them went to the spot together. It was stated to be around 11.00 p.m. when they reached the spot. On reaching the spot they found the dead body of the deceased was lying on the eastern side of the road. They also noticed an injury which appeared to them to have been caused by dao on the neck. Villagers also assembled there before P.W. 2 could reach the spot. He has also informed that some people had already left for Kamalpur police station. At that stage, noticing that the appellant No. 1 was not shedding tears, P.W. 2 asked him as to why he was not crying though his father was murdered. Despite this enquiry, appellant No. 1 kept mum. P.W. 2 left the dead body under guard of the appellant No. 1. He went to his house as no police till then reached the spot. After the sunrise, police reached the spot and learning about arrival of police, P.W. 2 went to the spot. On being asked by the police officer, appellant No. 1 allegedly divulged that he got his father murdered with the help of other two appellants. Appellant No. 1 further stated that while his father was being murdered by the other appellant Sankar Deb, he and appellant No.3 Nikhil Das were standing a little distance away from that place. Murder was committed with a dao. There the appellant No. 1 allegedly divulged that his father was disposing of all his properties and he was not looking after his wife and driven out the wife and the sons and for this reason he decided to kill his father so that his mother and younger brother could maintain themselves. Inrajit further stated to the police officer that for this act of murder, killers would be pad Rs. 1000/- and such payment was due. The police officer thereafter asked the appellant No. 1 to show him the path by which they left the place after commission of murder. So, the appellant No. 1 led the police officer to show him the path by which they left place of occurrence. Appellant No. 1 further stated that they took out some papers etc. from the pocket of the deceased after killing him and they threw away these papers on the way. After sometime, the police officer brought some papers including a record of right, prescription, rent receipt, a two rupee note etc. along with the appellant No. 1 Appellant No. 1 also stated that the appellant No. 3 Nikhil Das was to be paid Rs. 200/- for this act. Appellant No. 3 allegedly narrated the same story before the police officer which was already told by the appellant No. 1 Indrajit Deb. This is the gist of the evidence given by P.W. 2 before the trial Court. Admittedly, the entire story of confession said to have been made by the appellant Nos. 1 and 3 to the Officer-in-Charge of the police station or any police officer as claimed by P.W.2 is clearly inadmissible in evidence, same having been made to a police officer. No further elaboration of law in this regard is at all necessary. It further appears that P.W. 2 never stated this story to the police officer in his statement recorded during investigation that the appellant led the police officer through certain path and came back with papers after collecting the same. He also did not divulge in the statement before the police in course of investigation that the appellant Nos. 1 and 3 ever made any confession in presence of the police officer. It further appears that this witness specifically stated to the police in his statement recorded in course of investigation that the appellant No. 1 was sitting near the dead body of his father and was weeping. Therefore, the entire evidence of P.W. 2 is most untrustworthy. His entire evidence that deals with confession said to have been made by the appellant No. 1 to the investigating officer is inadmissible. Other parts of his evidence were not stated to the I.O. in course of the investigation of the case and these were stated by P.W. 2 for the first time before the learned trial Court and, therefore, no conviction can be founded on such evidence.
8. P.W. 3 Nikhil Namasudra was also declared hostile by the prosecution. His evidence does not support prosecution version.
9. P.W. 4 Shri Chitta Das also did not state anything material. P.W. 5 Shri Keshab Malakar was declared hostile and his evidence also does not disclose anything material. P.W. 6 Gorimga Das merely stated in his evidencce that on that day at 11.00 p.m. Chitta asked him for a lamp from his house. Accordingly, he came out of his house with a lamp and saw the dead body of the deceased Jogesh was lying by the road side near his house. Thereafter, with the help of torch light he could see the injury on the neck of the deceased which appeared to have been caused by a dao. Excpet this, he stated nothing more in his evidence. Likewise P.W. 7 was also declared hostile by the prosecution and he declined to support any part of the prosecution story. Prosecution cross-examined him before declaring him hostile and before obtaining leave from the trial Court. The Statement of this witness recorded by the police during investigation was brought on record and admitted in evidence before obtaining any permission to cross:examine and this novel method, unknown to law, was adopted by the trial Court as well as by the prosecution. We do not think any further comment in this regard is at all necessary exepet that the evidence of this witnessed also does not support prosecution version in any manner.
10. P.W. 8 Ganga Charan Deb Barma is material as regards the seizure of the dao. He clearly stated in his evident that dao was seized being produced by the father of the appellant No. 2. He also did not state as to whether said dao had any blood mark on it. Such dao is a common instrument found in every house in villages. Seizure of a mere dao from a house without anything else does not connect the appellant No. 2 with the crime. That apart, this witness stated in his evidence that the dao which was produced before the learned trial Court is not the dao which was seized by the I.O. This witness was also declared hostile for not supporting the prosecution case. P.W.9 is witness of seizure of wearing apparels of the dead body of the deceased. His evidence is also not very material for our present purpose. P.W. 10, witnessed, the seizure of the dao. He also did not support prosecution. It is strange that the prosecution cross-examined this witness with reference to his previous statement recorded u/s 161, Cr. P. C, without obtaining leave from the Court.
11. P.W. 11 was tendered by the prosecution without examining him. Defence also declined to cross-examine him. P.W. 12 is Dr. M. N. Debnath who held autopsy over the dead body in question. But in view of our decision which we are going to take, we do not think any further discussion of the evidence of P.W. 12 is at all necessary. P.W. 13 is a Police Constable who took the dead body with the dead body challan to the morgue and he identified the dead body in the morgue. Save this, his evidence does not disclose any further material. P.W. 14 is the Gao Pradhan. He has not been declared hostile by the prosecution. His evidence in fact substantially or at least indirectly belies the prosecution. He clearly stated that the appellant No. 1 was weeping. According to this witness he accompanied the informant to the police station for lodging F.I.R. From the police station he along with the officer-in-charge of the Kamalpur Police Station came to the place of occurrence early in the morning at about 5.30 a.m. At the spot inquest report was prepared and he put his signature thereto. At the spot he also saw the appellant No. 1 weeping. He further stated that at the instance of few children Daroga Babu came to know that some papers were lying somewhere near by and accordingly, Daroga Babu left the spot being led by the said children and this witness and others and as pointed out by the children he seized certain papers. This again belies the version given by P.W. 2 that these papers namely record of right, rent receipt, prescription papers namely record of right, rent receipt, prescription etc. were seized by the police being pointed out by the appellant No. 1 This witness also did not state that at the spot appellant Nos. 1 to 3 confessed to the I.O. that the appellant No. 1 got his father killed by other appellants. P.W. 15 is an inquest witness. P.W. 16 was also tendered. P.W. 17 is not at all important. P.W. 18 is the Sub-Divisional Judicial Magistrate who recorded the confession.
12. In the confession, appellant No. 1 virtually gave the whole prosecution story. Prosecution story is also available only from this confession. There is no further evidence on record to lend corroboration to the confession. Can conviction be founded solely on the basis of uncorroborated confession ? Is confession evidence in the strict sense of the term ?
13. Therefore, important question is whether confession is evidence within the meaning of Section 3 of the Indian Evidence Act. The Supreme Court in
"Garubachan''s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused ? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in
Their Lordships also point out that it is "obviously evidence of a very weak type... it is much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmites."
They stated in addition that such a confession cannot be made foundation of a conviction and can only be used in "support of other evidence". In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence ? Can it be used to fill in missing gaps ? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to belive him except in so far as he is corroborated ?"
In paragraphs, the Supreme Court further observed in the aforesaid case that;
"9. In our opinion, the matter was put succinctly by Sir, Lawrence Jenkins in Emperor v. Lalitmohan 38 Cal 459 at p. 588, where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused" or to put it in another way as Reilly J. did in In re Priyaswami Moopan, 54 Mad 75 : AIR 1931 Mad 177 .
"The provision goes no further than this where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 maybe thrown in to the scale as an additional reason for believing that evidence."
14. After taking aforesaid case laws into consideration, Supreme Court further observed in paragraph 10 as follows:
"10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
In the instant case, there is absolutely no evidence on record to even faintly suggest that appellants were concerned with the crime in question. If we exclude the confession from our consideration, we are actually left with no evidence to marshall the same against the appellants.
15. Again the Supreme Court in
"5. The confession of accused I was retracted at the time when the accused was questioned u/s 313. In considering the reliability of the confessional statement the High Court had not kept in view the observations of this Court in Kashmira Singh v. State of M.P. In this decision the Supreme Court had observed (AIR p. 15.9).
"The confession of an accused person is not evience in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is first to marshall the evidence against the accused exluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession, in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lead assurance to the other evidence and thus fortify himself in beliving that without the aid of the confession he would not be prepared to accept."
6. The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particularly by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. The trial Court has given cogent reasons for not accepting the evidence of PWs. 7, 8 and 11 and rightly so. The High Court has not given any convincing reasons as to why PWs, 7, 8 and 11 who were discarded by the trial Court should be relied on. The only evidence which calls for comment is that of PW 6, Noorbibi, who is said to have been accused 1 with the child around 7 p.m. On this aspect the trial Court pointed out that in spite of the fact that the missing of the child was widely talked about in the village and she was also stated to be aware of it she had not informed the police regarding this incident and that in fact neither she nor her husband to whom she had told the fact had informed this incident to any body in the village. Further her husband has not been examined as a witness. The trial Court also pointed out that this witness even after dead body of Tinu was found out had not told anybody regarding the above incident. For this and other reasons the trial Court had disbelieved PW 6 and the High Court had not traversed this aspect. On the other hand the High Court observed that she had disclosed this fact to the parents of the deceased next morning, a statement which is far from accurate if we examine her evidence carefully. The trial Court had rightly brushed it aside but the High Court did not analyse this parti of the prosecution evidence. The trial Court has also analysed the evidence of PWs. 7,.8 and 11 and had discarded their evidence on number of grounds. In fact, the High Court has also not relied on the evidence of PWs 7, 8 and 11. The whole approach of the High Court was to make confessional statement the basis and then find out if the facts stated therein were corroborated in material particulars by other evidence, instead of analysing the evidence first and trying to find out whether the evidence is reliable and the facts established are consistent with the guilt of the accused. With respect, the High Court failed to realise that there were statements in the confessional statement which provided intrinsic evidence of police interference for otherwise how could accused I have mentioned about having seen Noorbibi when he must have seen several others also. The trial Court had critically examined the recording of the confessional statement and held that the Magistrate had not taken sufficient precautions before recording the evidence in Order to ensure that the statement was voluntary. In fact the trial Court was of the view that the confessional statement was in the hands of the police even before the same was recorded by the Magistrate. Even the Investigating Officer''s evidence was not relied on by the trial Court and the. High Court had not said anything on that aspect. We also have gone into the evidence carefully and we cannot say that the Magistrate was far wrong in discarding the confessional statement. The reliance by the High Court on the evidence available that on August, 27, 1977 around 8.30 p.m. both the accused were seen together, that both of them knew each other, that late in the night on the day of occurrence accused 2 was seen in the temple of Kalka Devi situate at Prantij along with a sadhu who was not traced are all minor and flimsy circumstances which do not go to establish a chain of events pointing to the guilt of the accused. P.W. 17''s evidence that on the night when he saw accused 2 in the temple he appeared to be little frightened was not accepted by the trial Court on the ground that there was enmity between accused 2 and the witness. There was no reason why the High Court should have discarded this reason and accepted the evidence of PW 17 in this regard. Besides such evidence is neither here nor there. The recoveries relating to grain of rice at the place of occurrence and the same type of rice at the house 6f accused 2 do not show any involvement of the accused in the commission of the crime. The rice is not as such a distinguishale article being one commonly found in houses and that could not be treated as any incriminating circumstances. The trial Court had carefully considered the recovery of the rice as also the alleged recoveries of anklet and half pant worn by the accused on the information given by accused 1. Since we are agreeing with the trial Court reasoning in preference to that of High Court we do not consider it necessary to catalogue all the reasons given by trial Court. We think the consideration by the trial Court was more reasonable and conclusion more acceptable. We agree with the trial Court that the prosecution has not established beyond reasonable doubt about the involvement in the crime or commission of offence by the accused appellants."
16. Again in
17. Of course in some other decisions of the Supreme Court, it was held that confession can be acted upon if corroborated by independent evidence in material particulars. In the instant case, as we have observed, there is absolutely not even iota of evidence to lend any corroboration/assurance to the confession except the evidence furnished by the injury on the neck of the dead body of the deceased. Save that there is nothing. Dead body of the deceased had only one injury caused by a sharp cutting weapon. In the confession it was stated that two blows of a dao were inflicted upon the deceased. Therefore, to that extent also medical evidence contradicts the contents of the confession. In this regard reference may be made to the decision of the Suprme Court in
18. We have discussed the entire evidence on record. It is clear, therefore, that apart from retracted confession of the appellant No. 1, there is not even an iota of evidence on record to even remotely suggest that the appellants had any link or connection with the murder. In a large number of cases Supreme Court held that confession is not even evidence in the strict sense of the term within the meaning of Section 3 of Evidence Act and, therefore, no conviction can be founded merely on confession. Supreme Court further held that if conviction can be based on other evidence on record, then of course, confessional statement can be used to lend corroboration/assurance to such evidence on record. As already observed, we have thoroughly scanned the evidence. But we could not find even a shred of evidence to even remotely suggest that the appellants had any hand in the murder. Therefore, there is absolutely no evidence on record for which corroboration can be sought from the retracted confession on the appellant No. 1.
For the aforesaid reasons, we are left with no option but to allow this appeal and set aside the impugned judgment. Appellants shall be set at liberty forthwith, if they are still in custody.
N.G. Das, J.
19. I agree.
