Kalyan Rai Surana, J. - 14/09/2009 was a day of Ramadan - a pious month of Mohammadan religion. Fazrat Ali (PW-2) went to Bongaigaon leaving his wife - Samina Bibi (PW-3), his sons - Haminur Rahman @ Sultu (the victim), Md. Mofil hussain (PW-5) and Saminur Rahman (PW-12) and his daughter-Hasina Khatoon, home at Dhubri. Haminur went to spend the night with his cousins - Rafique Haque (PW-8), Nur Alom (PW-14) and Mohibul Haque (PW-7), who happened to be the sons of Taimuddin (PW-4). Taimuddin is the brother of Fazrat - the father of the victim and their houses were contiguous. Hamidur shared the bed with Mohibul and Rafique and Nur Alom shared another bed on that night. As it was a night of summer, the door of the room was kept open. Taimuddin slept at the adjacent room. The switch of the light of the room, where the boys were sleeping, was in the room of Taimuddin.
2. At about 1-1:30 a.m. Mohibul suddenly heard some sound and saw Haminur fallen on the floor from the bed. He raised a hue and cry. Hearing his cries, the other two present in the room - Rafique and Nur Alom - got up. But as the light was off, they could not gather anything immediately. Hearing his cries, Taimuddin got up and Samina (PW-3) also rushed to the room from her house. Taimuddin lit the light and all of them found Haminur lying on the floor, his throat cut and bleeding profusely. Seeing the same, Taimuddin fainted. Anowar Ali (PW-1) - the Secretary of the VDP - rushed to the house of Taimuddin and finding the boy, called the police over his mobile. In the meantime, Haminur succumbed to his injuries.
3. Fazrat was informed about the incident over telephone. He returned home and lodged the FIR (Ext-1) before Gauripur Police Station on 15/09/2009. One Farid Master wrote the same for him. The case was registered as Gauripur Police Station case no. 376/2009 u/s 302 IPC. It is pertinent to mention herein that nobody was named in the FIR, even as a suspect. After some days, Mina Babu (PW-13) informed the police that the accused-Arsad Ali-had made an extra-judicial confession before him that he had killed Haminur and Anowar Ali (PW-1) also echoed that the accused made such a statement before him and other co-villagers too. Samina also alleged that she saw the accused and his brother-Askar Ali-fleeing from the house when she arrived there and thus, the accused was arrested by the police and sent for trial.
4. Prior to that, on being informed, PW-16 - Sailen Deori - the then Sub-inspector of Police at Gauripur Police Station visited the place of occurrence on the next day morning i.e. 15/09/2009. He made a G.D.Entry vide ext-4, getting the information about the occurrence and drew sketch map (Ext-5), got the inquest done over the body vide Ext-2 in presence of Nurul Islam Sarkar (PW-9) and Hafizur Rahman (PW-12), sent the body for post-mortem and on conclusion of investigation submitted charge-sheet (Ext-6).
5. Dr. Shibulal Nag (PW-15), who conducted post-mortem examination, found a deep, sharp cut through the front side of the neck above the thyroid cartilage just below the lower jaw and almost all the structures of the neck being cut except the posterior wall of the neck and opined that Haminur died due to shock as a result of profuse bleeding following cut injuries vide his report Ext-3.
6. The accused abjured his guilt during the trial and the trial court acquitted him on the benefit of doubt in absence of sufficient material and hence this appeal by the informant-Fazrat Ali.
7. Admittedly there is no eye witness to the occurrence. Samina (PW-3) alleged that she saw the accused and his brother fleeing from the room when she arrived in the room hearing hue and cry of Mohibul. She went to describe the incident to the house of Farid Master and found both of them there with their hands stained with blood. But Farid Master did not allow her to raise hue and cry. Mofil (PW-5) also deposed that hearing hue and cry, he also accompanied his mother Samina and saw the accused fleeing from the room. Mohibul also claims that he saw the accused in the room, but he admitted in his cross-examination that he did not tell police about this during investigation. Fazrat also deposed that Samina told him that she saw the accused fleeing from the room. The evidence of Samina seems to be not convincing and as an afterthought. Had she seen the accused fleeing, she would have certainly told the police immediately and also about finding the accused in the house of Farid Master, which she did not do. She would have also said the same to her husband Fazrat and in that even he would have surely named the accused in the FIR and would not have informed the police that some unknown persons have committed murder of his son. Siddique Ali (PW-10) who came to the place of occurrence immediately and found the dead body with his mother Samina, deposed that Samina on being asked, told him that she did not know as to who committed the offence. Besides, Mofil also is not a reliable witness. He never stated before police that he accompanied his mother to the room and neither Samina nor Taimuddin deposed that Mofil also accompanied Samina. Not a single witness including Mohibul, Nur Alom and Rafique has deposed that Mofil also came with Samina and as such Mofil is an unreliable witness and his evidence is not trustworthy, the same being apparently an afterthought and tutored. Thus the evidence of Samina that she saw the accused fleeing from the house and also in the house of Farid Master is completely ruled out. There is no iota of evidence to even remotely relate the accused to the occurrence.
8. So far, the evidence of Anowar Hussain, Fazrat Ali, Mofil Hussain and Mina Babu regarding the confession of the accused before them is concerned, that too is a weak piece of evidence and conviction cannot be based on such evidence. All of them have deposed that the accused made an extra-judicial confession before them in presence of other co-villagers. But there is no consistency between the same. The evidence of Anowar Hussain, Fazrat Ali, Mofil Hussain and Mina Babu do not corroborate one another on material particulars so far the time, place and manner of making such confession are concerned. Anowar Hussain deposed that the accused confessed after few days, whereas Fazrat deposed that he confessed after 2/3 days and according to Mina Babu confession was made in the house of the accused after 5/6 days of the occurrence. None could exactly say the date, time etc. Mofil also deposed about making such a confession but after a week of the occurrence. Shaminur Rahman (PW-12) another brother of the victim was not present in the house at the time of occurrence and he only heard about the confession. All the witnesses who have deposed that the accused confessed his guilt before them are not related to the accused and they were rather strangers. Therefore, the fact that he made extra-judicial confession before them is wholly doubtful as there was hardly any possibility of the accused feeling protected by them after making such confession. It appears that all the relatives of the victim have tried to develop the prosecution case to see that the accused is convicted and their evidence is not supported by any independent and reliable evidence.
9. In Ratan Gaud v. State of Bihar (AIR 1959 SC 18) it was held that usually and as a matter of caution, courts require some material corroboration to an extra-judicial confession, corroboration which connects the accused with the crime in question. Again, in Vijay Shankar v. State of Haryana (2015) 12 SCC 644- it was held that extra-judicial confession is a weak piece of evidence and courts are to view the same with great care and caution.
10. In the instant case, the so called extra-judicial confession does not seem to be convincing enough to put the accused behind bar labelling him to be a convict as charged. The trial court rightly appreciated the materials available in the records from their proper perspectives and marshaled the law as well as the facts with proper application of mind. As such the impugned judgment acquitting the accused and setting him at liberty by holding him not guilty of the offence as charged is not liable to be interfered with. Accordingly the appeal deserves to be dismissed. Accordingly the appeal stands dismissed.
