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2008 DIGILAW 617 (GAU)

Md. Noor Hussain v. State of Assam

2008-08-22

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. Sk. Noor Mahammad learned amicus curiae representing the appellant in jail. Also heard Mr. K.A. Mazumdar learned P.P., Assam. 2. The appellant herein was convicted under Section 302, IPC by learned Addl. Sessions Judge, Dhubri by his judgment and orders dated 21.1.2002 and 1.2.2002 passed in Sessions Case No. 29/98, having found guilty of killing of two minor boys namely, Md. Faruk Hussain, aged about 10 years and Md. Hafizur Rahman aged about 11 years ('the deceased') and sentenced the accused appellant to suffer rigorous imprisonment (R.I.) for life and to pay a fine of Rs. 5,000 in default to suffer R.I. for three months. In arriving at the findings to render the impugned conviction and sentence as indicated above, the trial court basically based on the circumstantial evidence revealed from the testimony of as many as eight witnesses so examined by the prosecution including the doctor (PW7). 3. The aforesaid conviction and sentence have been challenged by the appellant from jail by preferring the instant jail appeal. 4. It was alleged in the Ejahar lodged by Noor Hussain Khandakar (PW1) on 11.11.1997 with Police of T.O.P, Dhubri College Road under Dhubri Police Station that around 3 p.m. on 10.11.1997 (yesterday) his son Faruk Hussain and Hafizur Rahman alias Bhebal Sheikh, son of Alauddin, a resident of same village, went to Khajanapuri 'Beel' for fishing. As they did not return till evening, he alongwith some villagers went in search of them. After long search they found the dead bodies of them in a paddy field. Somebody felled them there, after killing them brutally. 5. Admittedly there was no eye-witnesses to prove the case of the prosecution and entire case is based on circumstantial evidence to the effect that the extra judicial confession was made by the appellant before PW3 Smt. Minara Kliatun, PW4 Gul Nehar Begum, PW5 Abdul Khaleque, PW6 Saved Ali Mandal and PW8 Ganesh Ch. Das Investigating Officer (I.O.) as well as discovery of the offending weapon, Material Ext.3 on being led by the appellant himself. 6. PWs 3 and 4 in their deposition stated in corroboration that on the day of occurrence at around 7 p.m. the appellant came to their house, as both these witnesses were sisters and at that time they noticed the accused had been concealing something under his shirt in his back. 6. PWs 3 and 4 in their deposition stated in corroboration that on the day of occurrence at around 7 p.m. the appellant came to their house, as both these witnesses were sisters and at that time they noticed the accused had been concealing something under his shirt in his back. On being asked, he replied that he kept a dagger under the shirt in the back and when they asked him why he was carrying a dagger with him, he then left their house keeping the dagger on a table. Thereafter out of fear they threw out the dagger into a tank. On the next day of the occurrence, i.e., on 11.11.1997 the police came to their house alongwith the appellant. The appellant asked them to bring out the dagger and they brought out the dagger from the Tank and gave it to the police and the police seized the dagger which was exhibited as Mat. Ext. 3. 7. PW5 Abdul Khaleque also narrated the same story stating that he was told by PW3 about the incident of carrying dagger by the appellant in their house, PW5 deposed that he had seen the dagger in the hands of the accused and when PW5 asked the accused that being a small boy why he had been carrying the dagger then the accused gave the dagger to PW3 and left the place. PW5 further deposed that on the next day of the occurrence, i.e., on 11.11.1997 when the appellant came alongwith the police to the house of PW3 then he also went to the house of PW3 and he told police that on the previous day the accused had given a dagger to Minara Khatun PW3 which was kept in a tank. 8. Having closely gone through the testimony of PW1 Noor Hussain, PW3 Smt. Minara Khatun, PW4 Gul Nehar Begum, PW5 Abdul Khaleque, PW6 Sayed Ali Mandal and PW8 Ganesh Ch. Das, Investigating Officer (I.O.) it appears that the accused appellant made an extra-judicial confession by stating that he killed both the minor boys by the dagger. 8. Having closely gone through the testimony of PW1 Noor Hussain, PW3 Smt. Minara Khatun, PW4 Gul Nehar Begum, PW5 Abdul Khaleque, PW6 Sayed Ali Mandal and PW8 Ganesh Ch. Das, Investigating Officer (I.O.) it appears that the accused appellant made an extra-judicial confession by stating that he killed both the minor boys by the dagger. It is accepted that the evidence of extra-judicial confession is a weak piece of evidence, however, if the same is made voluntarily on being come from the mouth of the witnesses who appear to be unbiased and corroborates with the evidence of witnesses so examined by the prosecution, then after subjecting the evidence of the witnesses to a vigorous test on the anvil of veracity and credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of conviction. In the instant case, having meticulously gone through the evidence, we have no hesitation to hold that the instant extra-judicial confession can be accepted as the same found corroboration from the testimony of those witnesses namely, PWs-1, 2, 3, 4, 5, 6 and 8 whose deposition, we find to be reliable and trustworthy. 9. It is also found that weapon was recovered, from the possession of PW3 in consequence of information so rendered by the appellant who was brought by the police to the residence of PWs-3 and 4 while he was in police custody. Such recovery of the weapon (Ext-3) is relevant and admissible in terms of Section 27 Evidence Act, 1872 which provides as under: 27. How much of information received from accused may he proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 10. In the case of State of U.P. v. U.K. Anthony AIR 1985 SC 48 the Apex Court while dealing with a case of such nature, i.e., extra-judicial confession held at para 15 as follows: 5. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot he relied upon unless corroborated by some other credible evidence. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot he relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence See Jagta v. State of Haryana (1975) 1 SCR 165 at P. 170 : AIR 1974 SC 1545 at. P. 1548 and State of Punjab v. Bhajan Singh (1975) 1 SCR 747 at P. 751 : AIR 1975 SC 258 at p. 261. In Sahoo v. State of U.P. (1965) 3 SCR 86 : AIR 1966 SC 40 , it was held that an extra-judicial confession may be an expression of conflict of emotion a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime'. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The court proceeded to state that even if so much was established, prudence and demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However in Pyara Singh v. State of Punjab (1978) 1 SCR 597 : AIR 1977 SC 2274 , this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence hut there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence hut 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 he 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 it passes the test, the extra-judicial confession can be accepted and can 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. If 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. 11. Upon careful consideration of the facts and circumstances of the case in its entirety and also after close scanning of the testimony of the witnesses as mentioned above as well as having gone through the impugned judgment and order, we are of the view that the circumstances and the evidence so adduced against the appellant unmistakably point towards his involvement in the offence of killing of two minor boys and the chain is complete. We are, therefore, in full agreement with the views expressed and finding recorded by the learned Addl. Sessions Judge, Dhubri. We also find that the prosecution has successfully proved its case beyond all reasonable doubt and we do not see herein any convincing or sufficient materials to dislodge the impugned conviction and sentence. Consequently we do uphold and affirm the impugned conviction and sentence of the appellant. 12. In the result this appeal fails and stands dismissed. 13. Send down the LCR immediately. 14. Before parting with the case at hand, we would like to put on record our appreciation to Sk. N. Mahammad, learned amicus curiae for rendering his valuable assistance in arriving at the aforesaid decision. 12. In the result this appeal fails and stands dismissed. 13. Send down the LCR immediately. 14. Before parting with the case at hand, we would like to put on record our appreciation to Sk. N. Mahammad, learned amicus curiae for rendering his valuable assistance in arriving at the aforesaid decision. We order that he is entitled to get his professional fees which is quantified at Rs. 5,000. Appeal dismissed.