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1999 DIGILAW 942 (PAT)

Dubraj Alda v. State Of Bihar

1999-09-16

A.K.PRASAD, R.A.SHARMA

body1999
Judgment R.A.Sharma, J. 1. The sole appellant in this appeal, along with his son Dishing Alda, was prosecuted and charged for offence under Sections 302/34 of the Indian Penal Code for committing the murder of Ladu Alda. The trial Court acquitted Dishing Alda, but convicted and sentenced the appellant to life imprisonment for the said offence. Being aggrieved, the appellant has filed this appeal. 2. The prosecution case, as set out in the First Information Report (Ext. 5) is as follows : On 30-7-1988 at about 6 a.m. the informant Gopal Munda (PW-1), on getting an information about the dead body of Ladu Alda (eldest son of the appellant) lying near the house of the appellant, along with some villagers went to the place of occurrence where the dead body of Ladu Alda was lying. On inquiry by the informant, the appellant in the presence of the villagers said that yesterday evening his eldest son Ladu Alda (the deceased), who lived separately, came with TANGI (Axe) to kill him but his younger son Dishing Alda caught held of Ladu Alda and snatched the TANGI from him, with which he killed him . In the later part towards the end of the First Information Report it has been mentioned that the appellant has told the informant that the deceased used to quarrel with him on the question of partition of land and on the date of occurrence the deceased came with a TANGI to kill the appellant but he snatched the TANGI from him and killed by it. Thereafter, the appellant went inside his house from where he took out the blood-stained TANGI with which Ladu Alda was killed and handed it over to the informant. After getting the TANGI, the informant along with some villagers took the appellant and other accused Dishing Alda to the Police Station, where he handed them over along with the. TANGI to the police. 3. After the First Information Report was lodged, the Investigating Officer investigated the case and submitted the charge-sheet against the appellant and his son Dishing Alda for the offence under Sections 302/34 of the Indian Penal Code. The Chief Judicial Magistrate, Chaibasa, took cognizance of the offence and committed the case to the Court of Session for trial. 4. There is no eye-witnesses of the occurrence. The prosecution has examined seven witnesses in support of its case. (PW-1) in the informant. The Chief Judicial Magistrate, Chaibasa, took cognizance of the offence and committed the case to the Court of Session for trial. 4. There is no eye-witnesses of the occurrence. The prosecution has examined seven witnesses in support of its case. (PW-1) in the informant. PWs. 2, 3, 5 and 6 have been declared hostile. (PW-4) is the doctor, who conducted the post-mortem examination on the dead body. (PW-7) is the formal witness, who has proved the First Information Report and the Inquest Report. The Investigating Officer has not been examined. 5. The trial Court has convicted the appellant solely on the basis of the alleged extra-judicial confession, which is said to have been made by him before the informant and the villagers, including PWs 2, 3, 5 and 6. 6. The confession is an admission of guilt by a person charged of a crime. The apex Court in Palvinder Kaur V/s. State of Punjab, AIR 1952 SC 354 , in this connection has laid down as under : "16.............. It was observed by their Lordships of the Privy Council in Pakala Narayanaswami V/s. Emperor, AIR 1939 P.C. 47, that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession." 7. The confession is of two types, namely, judicial and extra-judicial confession. In the present case, the appellant alleged to have made extra-judicial confession before the informant, which is said to have been recorded in the First Information Report. 8. Extra-judicial confession is considered to be a weak piece of evidence. Normally, the Courts do not convict a person for a serious offence like murder on the basis of the extra-judicial confession without corroboration by other evidence either direct or circumstantial. In Pakkirisamy V/s. State of T.N, (1997) 8 SCC 158 : 1998 (1) East Cr C 236 (SC), the apex Court in this connection has observed as follows : "8.........It is well settled that it is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. In Pakkirisamy V/s. State of T.N, (1997) 8 SCC 158 : 1998 (1) East Cr C 236 (SC), the apex Court in this connection has observed as follows : "8.........It is well settled that it is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra-judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently, it loses its importance. The same principle has been enunciated by this Court in Balwinder Singh V/s. State of Punjab, 1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59." 9. The same rule has been reiterated by the apex Court in Kavita V/s. State of T.N., (1998) 6 SCC 108 : 1998 (2) East Cr C 499 (SC), holding as under(Para 4 of East Cr C) : "4. There is no doubt that conviction can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses." 10. As per the First Information Report, the appellant has told the informant that Ladu Alda (deceased) on the day of occurrence came with a TANGI to kill him but his younger son Dishing Alda caught hold of the deceased and killed him after snatching TANGI from him. This statement does not amount to confession of the guilt of the crime by the appellant. This statement does not amount to confession of the guilt of the crime by the appellant. In the later part towards the end of the First Information Report, it is recorded that when the deceased came with the TANGI to kill the appellant, he snatched the TANGI from him and killed him by it. But, it is inconsistent with and contrary to what is contained in the earlier part of the First Information Report. Reading the First Information Report as a whole it cannot be said that it contains a clearcut consistant and uncontradictory extra-judicial confession of the crime by the appellant. No reliance can be placed on such a so-called confession. 11. The evidence of the informant (PW-1) is full of contradiction. In his testimony before the trial Court, the informant has said that the blood-stained TANGI was lying near the dead body of the deceased, although in the First Information Report he has stated that the appellant took out the TANGI from his house and handed it over to him. In Paragraphs 3 and 5 of his tesimony, he has stated that the appellant has told him at the police station that he has killed the deceased, but according to the First Information Report, the appellant is said to have told the informant about the killing of the deceased in the village itself in presence of some of the villagers. In Paragraph 7 of his testimony, he has further said that he did not tell the police about the murder of the deceased by the appellant. He has also not testified that the deceased was killed by the younger son of the appellant, although such a statement he is alleged to have made before the informant as per the First Information Report. Both, fardbeyan and the testimony of the informant contain inconsistent and contradictory statements on vital points. 12. PWs. 2, 3, 5 and 6, before whom, according to the prosecution, the appellant is said to have made confession, have not corroborated the case of the prosecution. They have completely denied the knowledge of any such alleged confession made by the appellant. 13. There is neither any trustworthy extra-judicial confession of the appellant nor is there any evidence to corroborate the prosecution case. The trial Court was, therefore, not justified to convict the appellant. 14. This appeal is, accordingly, allowed. They have completely denied the knowledge of any such alleged confession made by the appellant. 13. There is neither any trustworthy extra-judicial confession of the appellant nor is there any evidence to corroborate the prosecution case. The trial Court was, therefore, not justified to convict the appellant. 14. This appeal is, accordingly, allowed. The impugned judgment and order of conviction and sentence dated 11-12-1990 passed against the appellant by the 2nd Additional Sessions Judge, Singhbhum at Chaibasa in Sessions Trial No. 50 of 1990 is set aside and the appellant is acquitted of the charges levelled against him. The appellant is also directed to be released from the jail custody forthwith, if not wanted in any other case (s). A.K.Prasad, J. 15 I agree.