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2014 DIGILAW 60 (CHH)

BARKAT ALI v. STATE OF C. G.

2014-02-12

INDER SINGH UBOWEJA, SUNIL KUMAR SINHA

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JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 26.12.2007 passed in Sessions Trial No. 155 of 2007 by the 6th Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentence for R.I. for one month. 2. The facts, briefly stated, are as under:- 2.1 Deceased-Najma was wife of the appellant. They had a son, Saiyad Gouhar Ali (Juvenile) and a daughter, Ku. Nuri (PW 4). The case of the prosecution is that Najma had a paramour, namely, Prahlad, due to which, she was not residing with the appellant. She was residing with her mother, namely Jebunisha (PW 1). Najma (deceased) was working in a Joss-stick Factory in Tarbahar area. On 16.04.2007, at about 6.00 p.m. she was returning from the Factory to her parental house, situated in Talapara. On the way, near Saibaba Temple, the appellant came with a rod and attacked over Najma, who sustained multiple serious injuries. 2.2 The further case of the prosecution is that thereafter, the appellant and his son Saiyad Gouhar Ali (Juvenile) went to the house of Jebunisha (PW 1), where they assaulted Jebunisha (PW 1) and Nuri (PW 4) by iron rod. They had also sustained serious injuries. At the time of assaulting the above witnesses in their house in Talapara, Saiyad Gouhar Ali (Juvenile) was holding a Katta. 2.3 The main incident was witnessed by Rani @ Farida (PW 3) and Krishna Kumar (PW 10). Both the witnesses turned hostile and they did not support the case of the prosecution. The learned Sessions Judge relied on the evidence of Jebunisha (PW 1) and Nuri (PW 4) and held that, while assaulting them, the appellant made extra judicial confession before them, therefore, he was liable for punishment as above. The appellant, thus, was convicted and sentenced under Section 302 IPC. However, he was acquitted under Section 25(1B)(a) of Arms Act, 1959. Hence, this appeal. 3. Mr. The appellant, thus, was convicted and sentenced under Section 302 IPC. However, he was acquitted under Section 25(1B)(a) of Arms Act, 1959. Hence, this appeal. 3. Mr. Manoj Mishra, learned counsel appearing on behalf of the appellant, has argued that the eyewitnesses had turned hostile and they had not supported the case of the prosecution the alleged extra judicial confession made by the appellant before Jebunisha (PW 1) and Nuri (PW 4) is highly suspicious; these two witnesses have deposed that they were assaulted by the appellant by iron rod and had sustained grievous injuries, but there is no medical report; even, the Investigating Officer did not depose that these two witnesses had sustained any injury; these two witnesses are mother and daughter of the deceased; they are interested witnesses, therefore, conviction based on the solitary circumstance of extra judicial confession cannot be sustained. 4. On the other hand, Mr. S.R.J. Jaiswal, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. Najma (deceased) had sustained five injuries, out of which, two injuries on the skull were lacerated wounds. She had also sustained a fracture on the left parietal bone. The Autopsy Surgeon, Dr. Vijay Kumar Chandel (PW 6), had opined that the cause of death was subdural hemorrhage on account of head injury and it was homicidal in nature. The postmortem report is Ex.P-14. 7. Mr. Mishra has not disputed the contents of the postmortem report. The question arises as to who caused those injuries to the deceased? 8. The two witnesses, namely Rani @ Farida (PW 3) and Krishna Kumar (PW 10) have completely turned hostile and they have not supported the case of the prosecution. According to Rani @ Farida (PW 3), she reached to the place of occurrence, after seeing a large crowed and then only, she saw that the deceased was lying in injured condition in pool of blood. Krishna Kumar (PW 10) also deposed in similar fashion. These two witnesses were put to lengthly cross-examinations by the Public Prosecutor, but nothing material could be elicited against the appellant. The Sessions Judge has also not believed on the testimonies of these witnesses. 9. Krishna Kumar (PW 10) also deposed in similar fashion. These two witnesses were put to lengthly cross-examinations by the Public Prosecutor, but nothing material could be elicited against the appellant. The Sessions Judge has also not believed on the testimonies of these witnesses. 9. The learned Sessions Judge has relied on the solitary circumstance of extra judicial confession, allegedly made by the appellant before Jebunisha (PW 1) and Nuri (PW 4). Jebunisha (PW 1) is mother of the deceased and Nuri (PW 4) is daughter of the deceased, who was residing with Jebunisha (PW 1), on account of strained relations between her parents (appellant and deceased). According to these witnesses, the appellant, after assaulting the deceased, came to their house, assaulted them by rod and thereafter made extra judicial confession before them. 10. Jebunisha (PW 1) deposed that on 16.04.2007, at about 4.30 p.m. the appellant came to their house. He was armed with a rod. He assaulted her by rod and said that ^^rsjh csVh dks igqapk ds vk;k gaw] rq>s Hkh igqapk nawxkA** Thereafter, she also added that the appellant was saying that he has killed her daughter. According to Jebunisha (PW 1), she had sustained injuries on her skull. 11. Nuri (PW 4) deposed that her father (appellant) came to their house and started assaulting her maternal grandmother. When she tried to intervene, the appellant assaulted on her skull by rod. She deposed that the appellant was saying that ^^rsjh eka dks ekjdj vk;k gaw vkSj izgykn dks Hkh ek:axkA** 12. Though, these witnesses have deposed that they had sustained injuries over their skull, but there is no MLC report. It also does not come in the evidence of Investigating Officer, Albert Kujur (PW 14), that either these witnesses had sustained injuries or they were sent for medical examinations. 13. In Sk. Yusuf vs. State of West Bengal, AIR 2011 SC 2283 . It was held that extra judicial confession is a weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. (Also see – State of State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 & Kulvinder Singh & another vs. State of Haryana, (2011) 5 SCC 258 ). 14. In Ajay Singh vs. State of Maharashtra, (2008) 1 SCC (Cri) 371, it was held that the extra judicial confession must be voluntary and a person to whom confession is made should be unbiased and not inimical to the accused. It was further held that where different witnesses claimed to have heard different sentences shouted by accused by way of confession after commission of the crime, it would be unsafe to rely on the alleged extra judicial confession. 15. In the instant case, the relations between the appellant and the deceased were not cordial, because the appellant was suspecting that the deceased had illicit relation with one Prahlad. It is for this reason, the appellant was residing separately with his elder son, Saiyad Gouhar Ali (Juvenile) and the deceased was residing along with her mother Jebunisha (PW 1) and daughter Nuri (PW 4) in her parental house in Talapara. Thus, the relations between the appellant and his mother-in-law and daughter, were not cordial. 16. That apart, these two witnesses of the extra judicial confession had given different versions about sentences shouted at the time of confession. They had claimed that they were assaulted by the appellant by an iron rod and had sustained serious injuries on their skull, but there is no supporting evidence in this regard. Even, the Investigating Officer has also not supported that these two witnesses had sustained injuries. 17. We are of the opinion that in the above facts and circumstances of the case, it was not safe to rely on the solitary circumstance of extra judicial confession allegedly made by the appellant to these two witnesses, as the same was shaky, doubtful and suspicious. We are unable to sustain the conviction of the appellant on the solitary circumstance of extra judicial confession. 18. For the foregoing reasons, the appeal is allowed. We are unable to sustain the conviction of the appellant on the solitary circumstance of extra judicial confession. 18. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 18.04.2007. He be released forthwith, if not required in any other case. Appeal Allowed.