P.G. Agarwal, J.@mdashThis Criminal Appeal is directed against the judgment and order passed by Shri K. Sharma, Sessions Judge, Cacher, Silchar in Sessions case No. 109 of 1995 whereby accused-Appellant Jasun Uddin Barbhuiya was convicted u/s 302/34 LP.C and sentenced to rigorous imprisonment for life and to pay a fine of Rs. 1,000/-
2. Accused Taj Uddin son of Md. Kutub Ali, resident of Labourputa under Katigorah P.S. (Since absconding) was a happy man having a wife in the person of Ashma Begam (Since deceased) and blessed with two kids. Few days before this incident, Taj Uddin''s younger brother Ebaduddin (P.W. 2) got married but this happy occasion changed the entire scenario in the household of Taj Uddin, because the newly wed also brought with herself, furniture and dowiy worth Rs. 5,000/-or so. Taj Uddin and his mother Suria Bibi became greedy and asked for dowry fix)m the parents of Ashma Begum as she had brought nothing at the time of her marriage with Taj Uddin. Being unable to get anything from his inlaws it was decided that one way to get dowry is to kill Ashma Begum and get a new wife for Taj Uddin.
3. On the fateful day of 24.7.1992 at about 7 p.m. innocent Ashma Begum was killed and thereafter the body was hanged so that it would look like a case of suicide by hanging. Haruk @ Faruk Uddin/P.W. 4 is the brother of the deceased. He came to the place of occurrence, on being informed, and noticing injuries on the person of his sister, he lodged the First information report Ext.-3 before the Police naming accused Taj Uddin. Police made usual investigation and submitted chargesheet against 3 persons, namely, Taj Uddin, his mother Suria Bibi and a neighbour Jasun Uddin Barbhuiya.
4. On conunittal of the case charge u/s 302/341. I.P.C. was framed by the learned Sessions Judge, Cacher, Silchar against Smt. Suria Bibi and Jasim Uddin as in the mean time Taj Uddin had absconded and he was declared as absconder. During the trial, prosecution examined as many as 10 witnesses. Defence did not adduce any evidence. On conclusion of trial the learned Sessions Judge, acquitted accused Smt Suria Bibi and convicted and sentenced the accused Appellant. Hence, the present appeal by the convict Jasim Uddia No appeal has been preferred by the State against the acquittal of Suria Bibi.
5. We have heard the learned Counsel for both sides and considered the case record. In this case, the death of Ashma Begum, on the date of occurrence is not in dispute. There is evidence of prosecution witnesses to show that they saw the dead body lying in the house of accused Taj Uddin. Dr. K.K Chakraborty, P.W. 5 held autopsy and found as many as six numbers of injuries on the legs, right ankle, left thigh and left lateral side of the chest and the lower border of mendible. The Doctor also found a well refined little depressed ligature mark along with the upper border of the thyroid cartilage. The opinion of the Doctor is that the death was due to asphyxia as a result of ante mortem strangulation by a legature around the neck homicidal in nature. The medical evidence on record was not challenged by way of cross-examination. In view of the oral and medical testimony, it is well established that this is a case of homicide and Ashma Begum was killed on the date of occurrence.
6. In this case, there is no direct evidence or eye witness to show the killing of Ashma Begum. The finding of guilt has been arrived at by the learned Sessions Judge on the basis of testimony of prosecution established witness Jamal Uddin P.W. 3 and the alleged extra-judicial confession of the convict Jasimuddin before P.W. 3.
7. Jamaluddin, P.W. 3 a young boy aged about 18 years, is the son of the accused Suroi Bibi (Since acquitted) and the brother of Taj Uddin since absconding. He has deposed that vviiile he was looking after the grazing of cattle in near by land, he heard shouts "bachao, bachao" emanating from his house and rushed to die house of Taj uddin. On his arrival, he found the Appellant Jasimuddin and his brother Taj Uddin and on his query, the convict told him that he has killed the deceased. The convict also threatened him not to make any alarm otherwise he (P.W. 3) will also be killed. Thereafter, he went inside the house and saw the deceased lying dead on the cot. The witness came out from his house and found his other brother Ebad uddin P.W. 2 coming from market. Thereafter he reported to P.W. 2 that Jasimuddin and Taj Uddin have killed the deceased. They returned back to the house and saw Ashma Begum hanging. This is what the star prosecution witness has stated in his examination-in-chief. From the above statement it is clear that this witness did not see the killing of Ashma Begum but he found the convict and Taj Uddin (since absconding) at the place of occurrence soon after the incident . The witness is altogether silent about the presence of Suroi Bibi and the silence is understandable.
8. Now coming to die alleged extra-judicial confession made by the convict before this witness, as per P.W. 3, the exact words were" Jasimuddin told me that he had killed the deceased". The witness, however, soon after the incident lile reporting the extra-judicial confession told P.W. 2 that Jasimuddin and Taj ddin have killed die deceased. Admittedly, Taj Uddin''s name was not mentioned by the convict and this was added by the witness himself. As a matter of fact P.W. 3 admits that in the statement before the Magistrate u/s 164 Code of Criminal Procedure he stated that Taj Uddin and Jasimuddin together killed Ashma Begum. However, this witness in his statement u/s 161 Code of Criminal Procedure gave another version and told police that Jasimuddin, Taj Uddin and Suroi Bibi jointly killed Ashma Begum. This contradiction was put to the witness in cross-examination but surprisingly it was not proved as required u/s 145 of the Evidence Act, through the Investigating Police officer. It was the duty of the learned Sessions Judge, to put the contradiction to the I.O. as laid down by this Court in the case of
9. The Id Judge has observed that ''in my considered view these contradictions are minor in nature without touching the basic merit of the case. ''From the evidence of P.W. 3 it is thus clear that the P.W. 3 has given three different versions as to who killed the deceased. Firstly, he says that Jasimuddm confessed before him that he killed the deceased. The witness made slight improvement while reporting to P.W. 2 and added the name of Taj Uddin. Later on, while making a statement before the police the witness stated that Jasunuddin and Taj Uddin and Suroi Bibi jointly killed the deceased. If the contradictions in the statement of P.W. 3 are not vital and do not affect the basic merit of the case, we are afraid there may not any other contradiction worth the salt which may affect a testimony of witness.
10. In this case, the enter prosecution case hinges on the alleged extrajudicial confession of the convict made before the P.W. 3. The law regarding extra-judicial confession is more or less well settled in the cantena of decisions,
11. P.W. 3 states that when he arrived at the place of occurrence, he found convict Jasimuddin and Taj Uddin in the room and at that point of time he had not seen the dead body as the dead body was in the other room but Jasumuddin made a confession and hence a question arises as to why Jasimuddin will make a confession at all. P.W. 3 was not a friend of Jasimuddin nor a person on whom the convict could confide. Before proceeding further, we are tempted to refer to the observations of the Apex Court in the case of
It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that h? may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if is passes the test, the extra judicial confession can be accepted an dean be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. It the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.
12. After hearing the alleged extra-judicial confession of the convict, P.W. 3 went inside the house and saw the dead body and came out. On the way, he met his brother P.W. 2 and reported him about the extra-judicial confession of the convict but at the same time also added the name of Taj Uddin as perpetrator of the crime. Taj Uddin''s name, was not mentioned by the convict but it was added by P.W. 3 only. P.W. 3 further states that soon thereafter about 10/20 persons arrived at the place of occurrence but surprisingly enough he did not disclose the incident or alleged confession of the convict before them. The witness has not given any explanation as to why he did not report to these persons about the confession of the convict, but in the impugned judgment, the learned Sessions Judge has mentioned that this may be due to the alleged threat given by the convict. Apparently, the threat did not work or count when P.W. 2 was reported. P.W. 3 further states that afterwards when the father and the brother of the deceased came to their place, he reported the incident to them but none of these witnesses have spoken anything about the alleged reporting of the confession. Further on perusal of the F.I.R. it is clear that no such reporting was made by the P.W. 3. The learned Sessions Judge has stated that the statement of P.W. 3 finds corroboration in the statement of P.W. 2. The relevant portion of the P.W. 2''s evidence reads as follows:
I found Jamal Uddin weeping near our pond and on my query he told me that accused Jasim Uddin and Taj Uddin strangulated and killed die deceased. Jamal threatend him to kill and out of fear he left the house and was weeping on the bank of the pond. Jamal Uddin further told me that accused Jasim wanted to give marriage of his sister Ashma Begum with Taj Uddin and so they killed Ashma Begum.
The above statement is indirect contradiction of P.W. 3''s testimony as P.W. 3 claims that he met P.W. 2 on the road to the market and not on the side of the pond in weeping condition. Further in his entire deposition before the Court P.W. 3 did not utter a single word that Jasimuddin wanted to give marriage of his sister to Taj Uddin. P.W. 2 has also given different versions as to what at Jamal told him about the incident in his examination-in-Chief itself P.W. 2 admits that ''I have stated before police that Jamal Uddin told me that my mother Suroi Bibi along with Jasun and Taj Uddin had killed Ashma Begum.'' In his cross-examination on behalf of the accused Suroi Bibi R.W. 2 further states that I have stated to police that on the day of occurrence my younger brother Jamal Uddin told me that my younger brother had killed my sister- in-law. I met near about 10/12 persons gathered in our house.'' Surprisingly P.W. 2 also did not report to these persons about the alleged confession of the convict. The entire evidence of P.W. 2 is based on the reporting made to him by Jamal Uddin, but it seems that like the statement of P.W. 3, this witness has also given different versions regarding the involvement of 3 accused persons.
13. In this case, the statement of these two witnesses were also recorded u/s 164 Code of Criminal Procedure and the said statements are marked as Ext-8 and 9. Learned Counsel for the Appellant has submitted that although these were marked as Exts, the above documents cannot be considered as these were not proved as required u/s 91 of the Evidence Act. The Magistrate who recorded the statement was not examined and the concerned witnesses P.W. 2 and P.W. 3 have also not proved Exts. 8 and 9. It was introduced through the investigating police officer, who merely collected these documents from the court. Further, we find that the prosecution version of the occurrence as disclosed in Exts. 8 and 9 is altogether different from the one stated by the 2 witnesses before the trial Court. Further, the evidence of P.W. 2 and P.W. 3 contradicts each other on material points. P.W. 3 claims that he saw the dead body of the deceased being hanged in the front room by the absconding accused Taj Uddin, but curiously enough P.W. 2 who came to the place of occurrence later on, and that too on being reported by P.W. 3 near the pond, found the dead body lying on a cot inside the room. After hanging the dead body, definitely it was not brought back for placing it on the cot where from it was taken for hanging. Man may lie but the circumstances would not. There is inherent infirmity in the evidence of P.W. 2 and 3 and their statements do not inspire any confidence whatsoever.
14. There is another aspect of the matter, learned Sessions Judge did not take the trouble of perusing the case diary. Had he done so, he would have been satisfied that there is something seriously wrong in the entire prosecution case. The occurrence took -place at about 7 pm on 24.7.92. The F.I.R. was lodged on the next day at about 3 p.m. The name of the present convict does not find mention in die said F.I.R. The Investigating police officer started investigation of the case and he came to the village to arrest F.I.R. named Taj Uddin and found that the house of the Tajudin is under lock and key and accused Taj Uddin his mother and the brothers P.W. 2 and 3 are absconding and the houses of these brothers are also under lock and key. These witnesses remained absconding till they were apprehend by police on 31.7.1992. The W.T message and the case diary of the I.0. show that F.I.R. named accused Taj Uddin and suspect Md. Embedding (P.W. 2) Md. Jamaluddin (P.W. 3) and Suroi Bibi Since acquitted) were brought to the police station for interrogation. The investgation changed its course thereafter and P.W. 2 and P.W. 3 for the first time came out with the story of involvement of Jasimuddin on the basis of alleged extra-judicial confession. If P.W. 2 and P.W. 3 were innocent and they were mere witnesses, there was no need for absconding soon after the incident. The post crime conduct is relevant.
15. A question may arise whether the trial Court can make use of the case diary for the above purpose. In the case of Queen- Empress. v. Mannu ILR (1897) All 390 , the object of Section 172 was stated in the following words as reproduced in
The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until die honesty, the capacity, the discretion and die judgment of die police can be throughly trusted, it is necessary, for the protection of the Public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and such police officer acted.
In Khatri (Supra) the Apex Court also held-
The Criminal Court holding an inquiry or trial of a case is therefore empowered by Sub-section (2) of Section 172 to send for die police diary of the case and the Criminal Court can use such diary, not as evidence in die case, but to aid it in such inquiry or trial.
16. This Court in the case of
The case diary is a very important document which has to be maintained in tents of the diary cannot be treated as evidence in a trial but die Court is entitled to persue die same u/s 172(2) of the Code of Criminal Procedure to aid it in the trial. This duty is incumbent upon a Public Prosecutor and almost always so upon a Court trying a serious offence of this nature. Where prosecution and defence are both inadequate, it will enable die court to raise up to the occasion and discover for itself die material facts and circumstances from the case diary, which can be brought to light through die witnesses examined in die case to arrive at the truth in die interest of Justice.
17. We have thought it our duty to go through the case diary in order to appreciate the evidence on record and find that the Story of making the extra-judicial confession by die convict was disclosed (or was it concoct?), for the first time, after 10 days of the incident, in view of aforementioned discussion, we have no hesitation whatsoever to hold that P.W. 3 and P.W. 2 are not reliable and credible witnesses and no extra-judicial confession as claimed by them was made by the convict.
18. In this case, there is apparently no direct evidence or no eye witness and, as such, the question of motive becomes relevant. It is well settled that where direct evidence regarding assault is worthy of credence and can be believed, the question of motive becomes more or less academic. The motive attributed to the convict in this case is that he wanted to give his sister in marriage to Taj Uddin along with the dowry demanded by Taj Uddin and his mother. Admittedly Taj Uddin was a married man at the relevant time. No doubt the convict is a rustic villagers but he was not a fool or unable to comprehend that a person who is ready to kill his own wife of 10 year standing and mother and 2 kids, for the sake of getting a dowry of Rs 5000/-; where is the guarantee that after few years or even few months his own sister will also not be killed by him for mere dowry or some green pasture. The apparent motive is too flimsy and it becomes non-entity in view of the evidence of the complainant P.W. 4 when he states that the sister of the accused Jasimuddin was of 7/8 years of age at the time of occurrence. As the convict had no sister of marriageable age, the above motive falls flat.
19. The learned Sessions Judge entered conviction of Appellant Jasimuddin on the basis of alleged extra-judicial confession and the testimony of P.W. 3 and P.W. 2. In the light of the aforesaid decision and discussion there is no material whatsoever to hold that the Appellant is guilty of the offences charged. Accordingly, the appeal is allowed. The conviction and sentence of the accused Appellant is set-aside. He is acquitted of the charges and set at liberty fort with.
20. Before parting with the record, it gives us the impression that the investigation of the case was made in a cursory manner. Although it was a case of murder of a young bride, there was no supervision by the higher police authority and the Investigating police officer for the reasons best known to him, misled himself and did his job in a perfunctorily manner. The way the trial was held and the impugned judgment was delivered, it does not give us the impression that either the Public Prosecutor or the learned Sessions Judge made any sincere, attempt to unfold the truth. Accused Suroi Bibi was charged u/s 302 I.P.C. only and when the two sons of the said accused give her a clean chit during their deposition before the Court, those two witnesses were not confronted with their earlier statements u/s 161 and also u/s 164 Code of Criminal Procedure which shows that the prosecution was interested to procure conviction of the present accused-Appellant only. Moreover, in the F.I.R. there was allegation of harassment to the deceased bride and there was also evidence to the effect that the deceased and her parents, brother were harassed by accused Suroi Bibi and Taj Uddin with demand of dowry but no charge u/s 304B was framed. Section 113B would have come handy to the prosecution. As pointed out in P. Barman (Supra), it was the duty incumbant upon a Public Prosecutor and almost always so upon a court trying a serious offence of this nature to bring out the material facts and make an endeavour to unfold the truth.
21. Let a copy of this judgment be sent to Public Prosecutor, Silchar, and to the learned Sessions Judge where ever he is posted at present.
