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2009 DIGILAW 524 (GAU)

Dhana Chandra Malsum v. State of Tripura

2009-08-05

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. S.C. Majumder, learned Counsel for the Appellant as well as Mr. R.C. Debnath, learned Special PP for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 22.1.2002 passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions Trial No. 44(ST/U)/98 under Section 395 IPC. 3. The prosecution story, in brief, may be stated as follows: On 6.4.97 at midnight a dacoity was committed by about five miscreants, after forcefully entering into the dwelling house of Sri Nidhan Charan Malsum (informant) they took away an amount of Rs. 2,000/ - from 'the house after making search in the house. Alarming raised, the villagers apprehended two of the miscreants, namely, Sri Soneram Malsum and Sri Karma Bhakta Malsum. A country-made gun was also recovered from the possession of Sri Karma Bhakta Malsum. On being asked by the villagers, the said apprehended persons disclosed that Sri Dhana Chandra Malsum (Appellant) and Sri Manithan Malsum were also present along with them in committing the alleged offence. The apprehended persons, namely, Sri Soneram Malsum and Sri Karma Bhakta Malsum were handed over to the Police. On receipt of the FIR, the Police launched investigation into the matter and forwarded the accused Sri Soneram Malsum and Karma Bhakta Malsum to the Magistrate for recording their confessional statement. Accordingly, the confessional statement made by the said two accused persons were recorded by the learned Judicial Magistrate. At the end of the investigation the Police submitted the chargesheet against the Appellant and four others, namely, Sri Soneram Malsum, Sri Padma Chandra Malsum, Sri Manithang Malsum and Sri Karma Bhakta Malsum and forwarded them to the court for trial for the offences under Section 395 IPC and Section 25(i)(a) of the Arms Act. 4. The offence being exclusively triable by the Court of Sessions, the case has committed to the Court of Sessions and the learned Sessions Judge, South Tripura, Udaipur framed charges under Section 395 IPC read with Sections 27 and 25(i)(a)(b) of the Arms Act against the accused persons to which they pleaded not guilty. 5. The prosecution examined as many as 9 witnesses and exhibited some documents. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 CrPC. They denied the allegations and declined to adduce defence evidence. 5. The prosecution examined as many as 9 witnesses and exhibited some documents. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 CrPC. They denied the allegations and declined to adduce defence evidence. During the trial, one of the accused persons, namely, Padma Chandra Malsum died. Considering the materials on record the learned Sessions Judge held all the four accused persons guilty of committing the offence under Section 395IPC and accordingly, convicted them for the said offence. The accused persons were sentenced to undergo RI for one year and to pay a fine of Rs. 1,000/ -, in default, to suffer further RI for three months. 6. Being aggrieved by the said judgment of conviction and sentence, the Appellant Sri Dhana Chandra Malsum has come up with this appeal challenging the impugned judgment and order, on the ground that the conviction was made without any substantive evidence. Sri S.C. Majumder, learned Counsel appearing for the Appellant, taking this Court to the evidence on record, submitted that except the confessional statements of the co-accused, namely, Sri Suneram Malsum and Sri Karma Bhakta Malsum, there is no other evidence on record against the present Appellant. The learned Counsel has further submitted that the confessional statement of a co-accused cannot be the sole basis of conviction without sufficient corroboration. Refuting the said argument, Sri R.C. Debnath, learned Special PP submitted that there is sufficient evidence, more particularly, the confessional statements of the co-accused made before the villagers as well as before the learned Magistrate indicating the involvement of the present Appellant. 7. In order to appreciate the evidence on record, I have carefully gone through the evidence of the witnesses. PW 1 was the Judicial Magistrate, who recorded the confessional statement of Sri Soneram Malsum and Sri Karma Bhakta Malsum. The same has been exhibited by the said witnesses as Exts.P/1 and P/2. The informant deposing as PW 2 stated that some unknown persons on the fateful night had called him from outside his house and that on being so called as soon as he had opened the door of his house the said persons, being armed with lathis, fire arms etc. entered into his house and took away an amount of Rs. 2,000/ - therefrom. He further stated that alarm being raised, the villagers could apprehend two of the miscreants. entered into his house and took away an amount of Rs. 2,000/ - therefrom. He further stated that alarm being raised, the villagers could apprehend two of the miscreants. According to this witness, the said apprehended persons disclosed the name of Shri Dhana Chandra Malsum (Appellant) and Sri Manithang Malsum. Similarly, PW 3 Sri Rajendra Kalai, PW 4 Sri Prakash Singh Malsum, PW 5 Sri Joypada Kalai and PW 6 Sri Barna Kumar Kalai stated that they had apprehended Sri Soneram Malsum and Sri Karma Bhakta Malsum and that the said two apprehended persons had disclosed the names of the other miscreants including the name of the Appellant. In view of the above evidence on record, it appears that the witnesses aforesaid came to know about the involvement of the present Appellant from Sri Soneram Malsum and Sri Karma Bhakta Malsum. Except the said evidence, there is no other evidence on record to believe the involvement of the Appellant. The said disclosure made by Sri Soneram Malsum and Sri Karma Bhakta Malsum before the villagers was nothing more than extra-judicial confession made by the co-accused. It is settled law that extra-judicial confession of co-accused cannot be treated substantive evidence to base the conviction without sufficient corroboration. Of course, the said Sri Soneram Malsum and Sri Karma Bhakta Malsum made judicial confessions before the learned Magistrate and they stated that they committed the dacoity in the house of the informant and that the Appellant and Sri Padma Chandra Malsum (since deceased) were also with them. The law is well-settled that the confessional statement of a co-accused cannot be the sole basis of conviction without sufficient and substantive evidence. The confession of co-accused can be used for the purpose of corroboration Paramananda Pegu v. State of Assam 2004 (3) GLT 1. The confession of one accused cannot be the substantive evidence against the other accused. In the present case in hand, there is no other evidence against the Appellant to believe that he had committed the alleged offence of dacoity in the house of the informant on the relevant night. In a criminal trial, the burden lies on the prosecution to prove the allegations beyond all reasonable doubt and the benefit of such doubt should always go in favour of the accused persons. In a criminal trial, the burden lies on the prosecution to prove the allegations beyond all reasonable doubt and the benefit of such doubt should always go in favour of the accused persons. Considering the impugned judgment, I find that the learned trial Judge based the conviction of the Appellant only on the basis of the confession of the co-accused, which was not substantive evidence. 8. Therefore, in view of the above discussion, in my considered opinion, the said conviction cannot stand the test of law. In the result, I find sufficient merit in this appeal to interfere with the impugned judgment of conviction and sentence. Accordingly, this appeal is allowed. The impugned judgment and order convicting the accused-Appellant is set aside and the Appellant is set at liberty forthwith. The bail bond of the Appellant shall stand discharged.