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2014 DIGILAW 125 (GAU)

Abdul Rashid v. State of Assam

2014-01-30

B.D.AGARWAL

body2014
1. This appeal is directed against the judgment dated 13.9.2013, passed by Sri P.J. Saikia, learned Sessions Judge, Darrang, Mangaldoi, in Sessions Case No. 84(DM) of 2008. By this impugned judgment, one of the co-accused Suruj Ali has been acquitted from the offence under section 395 of the Indian Penal Code, 1860 and the co-accused, Abdul Rashid/ appellant has been convicted for the said offence. On his conviction, the appellant has been sentenced to undergo RI for five years and also to pay fine of Rs. 25,000, with default sentence for further RI for six months. Being aggrieved with the conviction and sentence the accused has preferred this appeal. 2. Heard Sri R.C. Saikia, learned counsel for the appellant as well as Smt. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam. I have also gone through the impugned judgment and the prosecution evidence, proffered in the trial court. The defence case was of total denial and no evidence in defence was tendered. 3. The gist of the prosecution case is that in the night of 10.11.1999, a group of dacoits committed robbery in the dwelling house of PW-1. Since the dacoits could not be identified the FIR was lodged against s. me unknown persons. During the course of investigation, two persons were arrested initially on 26.11.1999 and on the basis of their statements one gun and one wrist watch was recovered from two different places. Subsequently, four more accused persons were arrested and the charge sheet was submitted against six accused persons on 29.2.2000. However, before the case was committed to the Court of learned Sessions Judge, four accused persons absconded and the trial proceed only against the accused Suruj Ali and Abdul Rashid. 4. To establish the evidence of dacoity, only nine witnesses were examined by the prosecution. PW-1 is the informant and his testimony is confined to commission of the dacoity by unknown miscreants. According to him, one single barrelled gun, 5 Nos. of wrist watches, gold ornaments, cash amount of Rs. 5,000 and other valuable items were looted by the dacoits. PW-2 is the son of the informant. He has given identical depositions regarding the commission of the dacoity. 5. PW-3 is the nephew of the informant. He heard about the dacoity from PW-1. Subsequently, after few days PW-3 heard from the informant about the arrest of two persons by the Police. PW-2 is the son of the informant. He has given identical depositions regarding the commission of the dacoity. 5. PW-3 is the nephew of the informant. He heard about the dacoity from PW-1. Subsequently, after few days PW-3 heard from the informant about the arrest of two persons by the Police. Accordingly, PW-3 visited the Police Station along with PW-4 and in their presence the accused persons had confessed their involvement in the crime. According to PW-3, the accused persons also confessed that they had concealed the looted gun in the compound of accused Abdul Rashid. Accordingly, the place was dug out and one gun was recovered under a bamboo-grove. PW-4 has corroborated the testimony of PW-3 regarding the recovery of a gun from a pit and the place was an open compound of the father-in-law of Abdul Rashid/appellant. 6. PW-5 is the witness of seizure of a wrist watch. According to him, on a particular midnight, Police came with two accused persons and showed him a wrist-watch. 7. The testimony of PWs-6 and 7 are not very relevant. However, PW-8 appears to be an independent witness and he was examined in the court regarding seizure of a gun. PW-9 is the Investigating Officer. 8. Sri Saikia, learned counsel for the appellant submitted that conviction should not have been recorded on the basis of recovery of one gun from an open compound. The learned counsel further asserted that the process of seizure of the gun was not held in presence of respected and independent persons from the locality. Besides this, there are material contradictions in the depositions of seizure witnesses. Above all, the learned counsel submitted that on the same set of evidence, the trial court has acquitted one of the two accused and has convicted the appellant on the basis of his confession before the Police Officers. 9. The record reveals that one of the absconding accused Siddique Ali had given a judicial confession before a Judicial Magistrate. Unfortunately, the said confessional statement was considered as extra-judicial confession by the learned Sessions Judge and this was made the basis for acquitting the co-accused Suruj Ali. The relevant findings of the trial court are reproduced below : "10.1 have carefully gone through the prosecution evidence. Unfortunately, the said confessional statement was considered as extra-judicial confession by the learned Sessions Judge and this was made the basis for acquitting the co-accused Suruj Ali. The relevant findings of the trial court are reproduced below : "10.1 have carefully gone through the prosecution evidence. Here in this case I again mention that the accused Suruj Ali @ Kana jhas been implicated in this case on the basis of an extra-judicial confession made by another accused of this case. One this point I have reasons to agree with Mr. J. Deka, the learned counsel who appeared for the accused Suruj Ali 2 Kana, when he pointed out that the law of evidence forbids the courts from relying upon such extra-judicial confession." 10. In my considered opinion, the aforesaid ground for acquitting the co-accused was totally untenable, inasmuch as, the co-accused Siddique Ali's confession was a judicial one and not an extra-judicial one. Section 30 of the Evidence Act, 1872, provides that judicial confession of a co-accused can be considered as corroborative evidence against the co-accused persons, provided the judicial confession is proved in accordance with law. However, in the case at hand, the co-accused was acquitted treating the judicial confession of Siddique Ali as extra-judicial confession. This is factually incorrect. 11. The other material illegality that has been committed by the learned Sessions Judge is that he has convicted the appellant on the basis of a confessional statement made before the Police Officer. The relevant observations of the trial court in this regard are also reproduced below : "11. The accused Abdul Rashid has been implicated in this case because of the fact that he had confessed before police that he was a member of the gang of dacoits that committed dacoity in the house of Ramani Kanta Saharia. This accused Abdul Rashid had also led the Police for recovery of the stolen SBBL gun. On being pointed out by the accused Abdul Rashid, police had dug out the stolen gun." 12. Section 25 of the Evidence Act debars the court to take into consideration the confessional statement made before a Police Officer. In this way, the conviction of the appellant is also untenable in law on this score alone. 13. The above apart, there is no material in the record that the seized gun and the wrist-watch were identified by the informant. In this way, the conviction of the appellant is also untenable in law on this score alone. 13. The above apart, there is no material in the record that the seized gun and the wrist-watch were identified by the informant. In other words, the evidence is not complete to prove that the seized items were actually looted property. Besides this, investigating agency did not make any attempt to hold a TIP before charge sheeting the appellant. Be that as it may, the legal principle is that if one of the co-accused has got the benefit of acquittal on a particular set of evidence, the same benefit is to be extended to the co-accused also. 14. For the foregoing reasons, the appeal stands allowed. The impugned judgment is hereby set aside. The appellant is set at liberty forthwith unless wanted in any other case. 15. The Registry is directed to return the LCRs along with a copy of this judgment to the trial court immediately.