BADAL SHEIKH v. STATE — 1986 DIGILAW 140 (CAL)

LILAMOY GHOSH, J. ( 1 ) THE Criminal Revision Case No. 2423 of 1981 and Criminal Appeal No. 373 of 1981 have been heard together and one judgment is being rendered, as both arise from the same judgment and order of the learned Additional Sessions Judge, Murshidabad. ( 2 ) THERE were six accused persons before the learned Additional Sessions Judge. One charge under section 302/34 of the I. P. C. was framed against all e second charge under section 120b of the I. P. C. is also a common charge against all. Against the accused, Badal Sheikh, a separate charge under section 364 of the I. P. C. was framed. ( 3 ) AFTER considering the materials on record, the learned Additional Sessions Judge found the accused Alam Sheikh and Badal Sheikh guilty under section 302/34 of the I. P. C. The accused Badal Sheikh, was further found guilty under section 364 of the I. P. C. So far as the charge under section 120b of the I. P. C. is concerned, the learned Additional Sessions Judge merely recorded that the same was redundant involving the accused Alam Sheikh and Badal Sheikh. ( 4 ) THE other four accused, namely, Nawab, Atahar, Sattar and Ashadullah were found not guilty of the charges and were acquitted. ( 5 ) THE appellants, Badal Sheikh and Alam Sheikh, have preferred an appeal against the order of conviction and sentence of imprisonment for life passed by the learned Additional Sessions Judge. Habibur Rahaman, the defacto-complainant, has filed the revisional application against the acquittal of the four named accused persons, mentioned earlier. ( 6 ) THUS the appeal and the revision case appear for hearing. The incident is concerning the death of one Mir Laik Ali, son of Abdul Wahed. Mir Laik Ali was murdered on 12. 8. 76 or the next day in the early hours-the exact time not being known. It is alleged on behalf of the prosecution that on 12. 8. 76, the accused, Badal Sheikh, called Mir Laik Ali from his residence, abducted him and led him into a newly constructed house, was overpowered there by him and the other accused who were lying in wait was carried to a nearby paddy field and was murdered. It is alleged on behalf of the prosecution that on 12. 8. 76, the accused, Badal Sheikh, called Mir Laik Ali from his residence, abducted him and led him into a newly constructed house, was overpowered there by him and the other accused who were lying in wait was carried to a nearby paddy field and was murdered. It is further stated that the accused Alam Sheikh, later, made an extra judicial confession before the father of Mir Laik Ali, P. W. 2 There is a reference to an earlier extra-judicial confession to some other witnesses, P. Ws. 7 and 8, but that part of the case as to extra-judicial confession before these witnesses have not been developed during trial. So a case is made out of extra judicial confession before P. W. 2. Later, the accused. Alam Sheikh, made a judicial confession before the Magistrate, P. W. 16. So far as the accused Badal Sheikh, is concerned, it is said that when Laik Ali did not return home his father had gone to make queries of the said Badal, as the latter had called out Mir Laik Ali. At first Badal Sheikh was not found at home. Later, in the morning, Badal Sheikh was found present at his residence. On being questioned, Badal Sheikh said that Mir Laik Ali had proceeded towards the field alone. Saying that, Badal Sheikh ran away to the village Gantla. Badal Sheikh was arrested and ultimately produced in the Thana. ( 7 ) THIS, in short, is the prosecution case. ( 8 ) THE defence case is one of innocence, ( 9 ) THE learned Advocate for the appellants, Sri Adhikari, has attacked the order of conviction of the learned Additional Sessions Judge on several grounds. He has, first, argued that the extra-judicial confession and the judicial confession, not being corroborated by any other material evidence, cannot be acted upon. It has also been pointed out that the confession was retracted at the earliest opportunity. So far as Badal Sheikh is concerned, he has argued that the evidence, as to his conduct, is not satisfactory. Further, according to the learned Advocate, even if that part of the evidence as, to his fleeing away etc is considered quite convincing, that cannot lead to any conclusion as to the guilt of the accused. So far as Badal Sheikh is concerned, he has argued that the evidence, as to his conduct, is not satisfactory. Further, according to the learned Advocate, even if that part of the evidence as, to his fleeing away etc is considered quite convincing, that cannot lead to any conclusion as to the guilt of the accused. So far as the confession of Alam is concerned, it has been argued that in any case the same cannot be used against Badal Sheikh, being in its nature the confession of a co-accused. ( 10 ) THE learned Advocate for the petitioners in Criminal Revision Case No. 2423 of 1981 has attacked the order of acquittal of the four accused persons, named earlier. He has, laid stress on the confessions made by Alam Sheikh. He has argued that the extra-judicial confession and the judicial confession can be used against the other co-accused also. ( 11 ) THE learned Advocate for the opposite parties, Nawab, Atahar, Sattar and Ashadullah, in Criminal Revision Case No. 2423 of 1981, has supported the judgment and order of acquittal as regards these accused persons. He has repeated the same arguments as advanced by the learned Advocate for the appellants, namely the confession retracted cannot be the sound basis of conviction. He has added that the Magistrate, who recorded the confession, did not append any certificate as to caution etc. ( 12 ) THE learned Advocate for the State, Sri Dasgupta, has supported the judgment and order of the learned Additional Sessions Judge. He had contended that the judicial confession of Alam Sheikh was recorded while he was in jail custody and so that itself lends assurance to the voluntary nature of the same. Having heard the learned Advocates for all sides, we now turn to deal with the respective cases of the respective accused persons. We first take up the Criminal Revision case, directed against the acquittal of four accused persons. So far as these four accused persons, who have been acquitted by the learned Additional Sessions Judge are concerned, the only evidences available against, them were the judicial and the extra-judicial confession of one of the accused, Alam Sheikh. Whether judicial or extra-judicial confession the source is the same and mere plurality of the number does not make one piece of evidence as to confession as corroborative evidence of the other piece relating to the same confession. Whether judicial or extra-judicial confession the source is the same and mere plurality of the number does not make one piece of evidence as to confession as corroborative evidence of the other piece relating to the same confession. So both together stand in the category of confession. Now this confession of co-accused cannot be pursued into service against the other accused persons unless the Court is satisfied, on other evidence, about the guilt of these accused persons. Thus only when the Court feels morally satisfied about the guilt of the accused persons on the basis of independent evidence, and feels inclined to seek assurance from the confession of the co-accused, then it is permitted to look into the said confession of the co-accused. That law has been settled by the decision reported in A. I. R. 1964 S. C. 1184. That law still holds the domain and stands the law of the land. So, in this case, as there is no other independent evidence against the accused, Nawab and others, the Courts are Dot even permitted to consider the confession of the co-accused, Alam Sheikh, as against them. That being the position, it is a case of no substantive evidence against. the four accused persons who have been acquitted by the learned Additional Sessions Judge. That part of the judgment and order of the learned Additional Sessions Judge must be upheld. The revisional application must fail on that ground. ( 13 ) TURNING now to the appeal preferred by Badal Sheikh and Alam Sheikh, it is now necessary to refer to the evidence recorded in more detail we take up the position of each accused separately. First we turn to the evidence against Badal Sheikh. Against him, there is the evidence of P. W. 2, P. W. 3. P. W. 4 and P. W. 5, Added to that, is the extrajudicial confession of Alam Sheikh, the other co-accused, and also the judicial confession of Alam Sheikh, the other co-accused, and also the judicial confession made before the Magistrate. Ext. 6 P. W. 2 is Abdul Wahed, the father of the deceased Mir Laik Au. His evidence is that on that night at about 81 8-30 p. m. he heard that Badal Sheikh had called his son; Mir Laik Ali. As Mir Laik Ali was not then present, Badal Sheikh was so told by him. Ext. 6 P. W. 2 is Abdul Wahed, the father of the deceased Mir Laik Au. His evidence is that on that night at about 81 8-30 p. m. he heard that Badal Sheikh had called his son; Mir Laik Ali. As Mir Laik Ali was not then present, Badal Sheikh was so told by him. Later, late at night the wife of P. W. 2 called him and reported that Laik had not returned home. It is further narrated by P. W. 2 that his wife had then disclosed that Badal Sheikh had called out his son. That part of the statement that Badal had called out Laik cannot be treated as substantive evidence and must be ignored. The wife of P. W. 2 was merely tendered and not examined. Be that as it may, P. W. 2 has narrated that on getting intimation from his wife he went to make queries of Badal, but found him absent at first. On the next day, at about 5 a. m. he against went to the house of Badal Sheikh and then found him present. On being asked, Badal Sheikh said that Mir Laik Ali had gone towards the north alone. Then he has added that Badalsheikh then said that his son had. had gone to Daspara Math. Saying that, it is stated, Badal Sheikh ran towards the village Gantla through different houses. It is in evidence that ultimately Badal Sheikh was arrested in the village Gantla. P W. 3 and P. W. 4, are the two witnesses, who affirm that that night Mir. Laik Ali was seen in the company of Badal Sheikh. According to P. W. 3. When Laik was asked where he was going to, the accused Badal Sheikh bade him to follow suit quickly. The other witness, P. W. 4, who runs a shop at Marnrul village, also saw that night that Mir Laik Ali and Badal Sheikh were passing along the road. The next link in the prosecution evidence about the complicity of Badal Sheikh is the evidence of P. W. 5, P. W. 5 states that when the father of Mir Laik Ali asked Badal Sheikh where Mir Laik had gone to, Badal Sheikh, after giving some vague answer, suddenly ran towards Gantla. Leaving aside the extra-judicial confession and the confession these are the only pieces of evidences against Badal Sheikh. Leaving aside the extra-judicial confession and the confession these are the only pieces of evidences against Badal Sheikh. That Badal Sheikh was not at first found present at his residence, that later he gave a vague reply and ran and that some time that night. Mir Laik was found in his company, can raise a suspicion, but by itself cannot furnish a judicial proof so as to found the conviction of guilt. The mere fact that Mir Laik Ali was last found in the company of Badal Sheikh may admit of many other explanations; it can be argued that after a certain distance. Mir Laik Ali had followed his different route to a different destination. Similarly the fact that Badal Sheikh, giving certain vague answers ran away suddenly, cannot conclusively point to his guilt. It is not unknown that fear psychology often overpowers even innocent rustic villagers. So the prosecution has drawn a line to a certain extent as regards the involvement of Badal Sheikh but has not been able to draw the circle so as to encircle him. The other pieces of evidence against this accused, Badal Sheikh, are the extra-judicial confession made to P. W. 2 and the judicial confession, Ext. 6. In this connection it is felt that it is futile to dwell much on the intrinsic value of the extra judicial confession and the judicial confession, because, as observed before, the law is settle that the confession of a co-accused cannot be used in evidence against the other accused unless the court is morally satisfied on other evidence that the accused is guilty. As in the case of Badal Sheikh no such independent evidence, conclusive in nature is forth coming, we would not look to the confession judicial and extra-judicial-made by Alam Sheikh. So the guilt of Badal Sheikh has not been proved. There is no sufficient ground for holding the accused Badal Sheikh, guilt under any of the charges framed against him. ( 14 ) NEXT we turn to the position of the accused, Alam Sheikh. The evidence comprises the extra- judicial confession before P. W. 2 and the judicial confession, Ext. 6. It is deposed to by P. W. 2 that Alam Sheikh was brought before him by two other witnesses, P. Ws. 7 and 8. ( 14 ) NEXT we turn to the position of the accused, Alam Sheikh. The evidence comprises the extra- judicial confession before P. W. 2 and the judicial confession, Ext. 6. It is deposed to by P. W. 2 that Alam Sheikh was brought before him by two other witnesses, P. Ws. 7 and 8. Then, it is said, Alam Sheikh made an extra-judicial confession before P. W. 2, as also in the presence of P. Ws. 7 and 8. There is reference to an earlier extra-judicial confession made to P. Ws. 7 and 8, but that part of the case is to be ignored, because the witnesses, P. Ws. 7 and 8 have not confirmed that confession by giving substantive evidence in Court. So far as the statement of P. W. 2 is concerned it is made out that Alam Sheikh was repentant and so he made the confession that Mir Laik Ali was abducted by Badal Sheikh, led into a newly constructed house, overpowered by all the accused persons, then carried physically to a paddy field and murdered there. As to the role of each, the evidence relating to the extra-judicial confession is to the effect that Nawab had thrust knife in the throat of Mir Laik Ali and the rest of the accused persons were holding him tight. Then comes the judicial confession, made before the Magistrate (P. W. 16 ). That confessional statement is Ext. 6. This Ext. 6 gives an account that Alam, Nawab, Sattar and Badal held and then the victim (name not disclosed) was carried to a field. There, Nawab thrust the knife in the throat of Mir Laik Ali, while the rest of the other accused persons held the victim. More or less Ext. 6 is in conformity with the version of P. W. 2 as to the extra-judicial confession, excepting that Ext. 6 is more cryptic and at places ambiguous. It is to be noticed that in. Ext. 6, the name of the victim event is not disclosed. Be that as it may, even if this Ext. 6 can be said to be supplemented by the extra- judicial confession, that supplementation will be regarding the facts omitted. In any case Ext. 6 cannot be said to be corroborative evidence of extra-judicial confession and vice versa. Ext. 6, the name of the victim event is not disclosed. Be that as it may, even if this Ext. 6 can be said to be supplemented by the extra- judicial confession, that supplementation will be regarding the facts omitted. In any case Ext. 6 cannot be said to be corroborative evidence of extra-judicial confession and vice versa. The two pieces of evidences as to confession come from the same source and it is not permissible to say that they corroborate each other; for one cannot corroborate himself. Thus even accepting that the extra judicial confession and the judicial confession (Ext. 6) are otherwise in form they do not receive corroboration from any independent material evidence. It has been argued that the fact that Badal Sheikh was found in the company of Mir Laik Ali up to a certain extent has been proved independently; but corroboration must be in material particulars and mere stray act, without any background, cannot be said to be sufficient corroboration. Therefore, it is found that the confessional statements are not corroborated. It is also to be observed, that the confession were retracted at a very early stage, as evidenced by Exts. A, B, C and D. It is not that the confessions were retracted only at the time of sessions trial. That being the position it is all the more imperative that the Court should seek for corroboration. In a very recent case, reported in 1986 C. Cr. L. R. 55 the Supreme Court has, held that the confession, when retracted, in the absence of independent corroboration, cannot be taken aid of by the Court to find the accused guilty. This position was also earlier settled and in the last mentioned case it finds a reiteration of the same law. Following the decision, we hold that without corroboration the Court cannot act on the basis of confessions merely to find the accused Alam Sheikh guilty. On the grounds, aforesaid the accused, Alam Sheikh must also be held not guilty of all the charges. ( 15 ) THERE is another aspect in the matter. It has been found that the other four accused, including Nawab, has been found not guilty and that finding is being affirmed by this court on cogent grounds. Now the confessional statements give an important role to Nawab; it is said that actually it was Nawab who struck with the knife. It has been found that the other four accused, including Nawab, has been found not guilty and that finding is being affirmed by this court on cogent grounds. Now the confessional statements give an important role to Nawab; it is said that actually it was Nawab who struck with the knife. If Nawab himself, the principle, is found not guilty, the whole case, on the foundation of section 34 of the I. P. C. , gets disintegrated and disintegrated into decay. Because finding Nawab not guilty and again finding Alam and Badal guilty on the basis of the confessions which attribute the main role to Nawab, would be contradictory. For these reasons also, the case against Badal and Alam is destined to fail. ( 16 ) THE result is that the Criminal Revision No. 2423 of 1981 fails and the Rule is discharged. Criminal Appeal No. 373 of 1981 is allowed. The appellants, Badal Sheikh and Alam Sheikh, are found not guilty of any of the charges. They be acquitted. The judgment and order of the learned Additional Sessions Judge, convicting and sentencing them to imprisonment for life (described as R I. for life) are thus set aside. The appellants be set, free at once, if not wanted in connection with any other offence. ( 17 ) SANKARI Prasad Das Ghosh, J.- I agree that the Criminal Appeal is to be allowed and the Rule and the Criminal Revision is to be discharged. The standard of corroboration required In the case of retracted confession is, however, different from the standard of corroboration required in the case of evidence of an accomplice, General corroboration is sufficient in the case of retracted confession, whereas corroboration in material particulars is necessary in the case of the evidence of an accomplice. In the present case there is no general corroboration of the retracted extra-judicial confession or the retreated confession, Ext. 6, on the basis of the facts enumerated by My Lord in the judgment. As such the criminal appeal is to be allowed and the Rule in the criminal Revision is to be discharged. Appeal allowed.