IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRIMINAL APPEAL NO. 68 OF 2014 Fazrat Ali, S/o Late Panaulla Sheikh, Resident of village-chitalkandi, PO & PS- Gauripur, Dist. Dhubri, Assam -vs-..appellant 1. State of Assam 2. Md. Askar Ali, S/o village- Chilalkandi, Mouza- Chilalkandi, PO & PS- Gauripur, Dist. Dhubri, Assam.Respondents BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE KALYAN RAI SURANA For the appellant: Mr. S. Nath, Ms. S. Chakraborty, Advocates For the respondents: Mr. M. Phukan, Addl. P.P. Date of hearing & judgment : 17.11.2016 Crl.Appeal No.68/2014 Page 1 of 7
JUDGMENT & ORDER (Kalyan Rai Surana, J.) This appeal under Section 378 (2)(b) of Code of Criminal Procedure has been preferred against the judgment and order dated 27.11.2013 passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 191/2010 under Section 302 IPC, by virtue of which the respondent-accused was acquitted. 2. The brief facts of the case is that one Fazrat Ali vide FIR dated 15.09.2009 filed before the Gauripur Police Station alleged that on 14.09.2009 at the night at about 1.30 AM some persons killed his son, Haminur Rahman, by cutting throat, while his son was sleeping. It is stated that at that time he was at Bongaigaon and getting the information he came to his house on the next day morning and came to know about the incident. On the date of incident i.e. on that night the accused was sleeping at the house of Taimuddin along with one Mohibul. Suddenly, the mother of the deceased (PW.3) heard hue and cry that someone has assaulted Haminur by cutting his throat, who was fallen under the bed. After hearing the hue and cry, she went to the house of Taimuddin and on the way at that time she found that the accused Askar Ali and his brother were fleeing away from the aforesaid house. Thereafter, she entered into the room and found that her son Haminur was lying on the ground and she saw that there is a cut mark on the neck of her son. Gauripur Police Station on registration of the case, took up the investigation and at the conclusion of the investigation, submitted the charge-sheet against the accused persons under Section 302 IPC. After commitment and on the appearance of the accused, charge was framed under Section 302 IPC against the accused. The charge was read over and explained upon the accused, to which, he pleaded not guilty and thus trial commenced. Crl.Appeal No.68/2014 Page 2 of 7
3. We have heard Mr. S. Nath, learned counsel for the appellant and Mr. M. Phukan, the learned Additional Public Prosecutor, Assam. We have also carefully perused the lower court records. 4. Mr. M. Nath, learned counsel for the appellant has taken us through the evidence of all the 16 witnesses and urged before us all the grounds taken in the Memo of Appeal, specifically highlighting three broad issues viz., - i) that the extrajudicial confession made by the accused is sufficient to incriminate him of murdering Haminur, ii) that there was lapse on the part of investigation for not seizing or examining the blood stains clothes of the accused and iii) that the appreciation of evidence by the learned trial court below was not proper. 5. The record reveals that in his deposition, PW.1, namely, Md. Anowar Hussain deposed that on 14.9.20009 he was the VDP Secretary and at about 1:30 AM he went to the house of Taimuddin on hearing hue and cry and saw Haminur @ Sultu was lying on the floor, his neck was cut and he was bleeding. He deposed that he contacted the police over phone and the police came early morning and took away the dead body. He further stated that after a few days of the occurrence, the accused Askar Ali himself confessed before the public that he had killed Haminur by cutting his neck with a knife. There is no eye-witness of the incident. 6. PW.5, PW.12 and PW.13 have also deposed that after the incident, the accused himself made extra-judicial confession before them about his cutting the neck of the deceased. However, these witnesses have given different versions as to the time and place where the accused had made the alleged extra-judicial confession. While PW.2 stated that the confession was made 2/3 days after the incident, PW.5 stated that the confession was made 1 week after the incident. PW.12 merely stated that later the accused confessed the guilt before public and thereafter police came and arrested the accused and PW.13 has stated that confession was made in the house of the accused in the presence of some female members about 5/6 days after the incident. Crl.Appeal No.68/2014 Page 3 of 7
7. PW.3 has stated that she saw the accused and his brother Askar Ali fleeing from the house of Taimuddin. She claimed that she had seen the accused and Askar Ali at the house of Farid Master and found blood stains on their hands. PW.5 also claimed to have seen the accused and Askar Ali fleeing from the room and that their clothes were stained with blood. PW.7 claimed that his father and aunty came to the room in which he was sleeping with Haminur (deceased) and the accused in the dock fled from the room. In cross, he admitted that he did not find the accused committing the crime nor did he see the accused fleeing away from the room. 8. PW.2 in her cross examination stated that Mohibul, Raffique Islam were sleeping with the deceased. She and PW.4 stated that at the relevant point of time the deceased was sleeping in the house of Taimuddin with Mohibul, Raffique and Nur Alom. PW.5 has stated that Mohibul was sharing the bed with Haminur (deceased) while Rafique and Nur Alom were sharing another bed in the room. PW.7, namely, Mohibul Hoque, stated that he was sharing the bed with the deceased. PW.8 stated that he along with Nur Alom was sleeping on a bed and Mohibul was also sharing the bed along with the deceased. 9. Therefore, the versions of the witnesses have material discrepancies. As per the version of PW.4, Haminur had fallen from the bed. As per PW.8, after his father and aunt came to the room then they found that neck of the deceased was cut and Haminur had expired in the room itself. 10. PW.3, though she stated that she saw the accused and his brother Aksar Ali at the house of Farid Master with blood stains hands, she did not inform the police or PW.1 i.e. the VDP Secretary about the existence of blood stains in the hands of the accused and Askar Ali, which appears to be very strange in the circumstances. Crl.Appeal No.68/2014 Page 4 of 7
11. It appears from the record that none of the witnesses given statement to the police at the initial stage about the existence of blood stains in the hands and/or clothes of the accused and Askar Ali. No effort was made to examine Farid Master to bring home the fact that the accused and Askar Ali had gone to the house of Farid Master with blood stains hands. Version of PW.3 does not inspire confidence because she did not raise any alarm when she saw her own son murdered by cutting of the neck/ throat by the accused although she saw him with blood stains hands. She also did not implicate Askar Ali. Therefore, the entire case revolves around the extra-judicial confession allegedly made by the accused person. 12. PW.1 had stated that when accused confessed before the public that he had killed Haminur, but none of the members of public present on the occasion was named by the PW.1. As already noted above, the date on which the alleged offence was made is not ascertainable because of variance in the versions of PW.2, PW.5, PW.12 and PW.13. 13. We have also found that the Investigating Officer(PW.16) stated that the statement of the Md. Anowar Hussain (PW.1) was recorded on two occasions, whereby it appears that while on the first occasion, PW.1 had stated that he did not know who killed Haminur but in the subsequent stage when the second statement was recorded, PW.1 improved his version by saying that the accused had confessed his guilt before him. Similarly, PW.16 also stated that PW.12 and PW.13 had also not stated before him during investigation that the accused had made any confession about the guilt. 14. On close scrutiny of the materials on record, this Court is of the opinion that the allegation about extra-judicial confession being made by the accused appears to be an after-thought amounting to improvement of the story of the prosecution by PWs. It is a well settled law that extra-judicial confession is a weak kind of evidence and the court shall required to be cautious while appreciating such Crl.Appeal No.68/2014 Page 5 of 7
extra-judicial confession. Immediate plausible witnesses like PW.7, PW.8 and PW.14, who were present in the same room wherein the gruesome murder had taken place did not see the accused in the room while doing the alleged crime. 15. In the case of Ratan Goud vs. State of Bihar, reported in AIR 1959 SC 18 the Hon ble Supreme Court, inter-alia, held that usually and as a matter of caution, courts require some material corroboration to an extra-judicial statement, corroboration which connects the accused with the crime in question. Again, in the case of Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, the Hon ble Apex Court has, inter-alia, held that extra- judicial confession is a weak piece of evidence and courts are to view it with greater care and caution. For extrajudicial confession to form basis of conviction, it should not suffer from material discrepancies and inherent probabilities. In the present case in hand, extra-judicial confession allegedly made before PWs No. 2, 5, 12 and 13 does not inspire confidence and in our opinion, cannot form the basis of conviction. 16. In view of the discussions made here-in-above, we find that the extrajudicial confession allegedly made by the accused does not inspire confidence to implicate the accused with the alleged crime and that any lapse of investigation has not been proved before the learned trial court as the Investigating Officer was not even given the suggestion as to whether in course of investigation he found the blood stains on the clothes of the accused, which allegation is even otherwise disbelievable because the mother of the victim, PW.3, did not inform anyone about the presence of the accused with blood stains hands in the house of Farid Master. It is dis-believable that a mother, who has lost her son by commission of murder by cutting of throat/neck would not do anything to prevent the accused from escaping from the house of Farid Master and would not disclose about all these before the police in her initial statement recorded under Section 161 of CRPC. Therefore, it cannot be stated that the appreciation of evidence by the learned trial court was not proper in any manner whatsoever. Crl.Appeal No.68/2014 Page 6 of 7
17. In the light of the fresh appreciation and the entire materials on record, we fail to find any infirmity with the impugned judgment and order dated 27.11.2013 passed by the learned Sessions Judge, Dhubri in Sessions Case No.119/2010, for which this appeal is dismissed. 18. Return back the LCR. JUDGE CHIEF JUSTICE MKS/ Crl.Appeal No.68/2014 Page 7 of 7