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2016 DIGILAW 1002 (GAU)

Abdul Rahman Kaji v. State of Assam

2016-11-16

AJIT SINGH, KALYAN RAI SURANA

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JUDGMENT AND ORDER (Ajit Singh, C.J.) The sole appellant Abdul Rahman Kaji has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 5,000/- with default stipulation. He has also been convicted under Section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and fine of Rs. 2,000/- with default stipulation. His jail sentences have been ordered to run concurrently. 2. The victim of the incident was Moniruddin Kaji. He was also father of the appellant and aged about 85 years. 3. According to the prosecution case, on 11.12.2000 around 6.30 p.m. Moniruddin Kaji took meal in the house of his daughter Mehurun Nessa (PW-1) at Bhairabnagar falling within the jurisdiction of Police Out Post Arunachal, District Cachar. He then left for evening prayers to mosque but did not reach there. He also did not reach home during night and search for him brought no result. On the next day i.e. 12.12.2000, sometime in the afternoon, people had gathered at a paddy field to perform cremation of one local resident. There some of them discovered the dead body of Moniruddin Kaji which was concealed with garbage. The body was identified by the appellant who also informed the police. The police immediately came to the spot and prepared inquest report, Exhibit-2 of the dead body. The police then also sent the dead body for post mortem examination at Silchar Medical College and Hospital. 4. On 13.12.2000, Dr. Gunajit Das (PW-9) conducted the post mortem examination. He found abrasion over front left side of forehead, size 5 x 1 cm; abrasion on right lateral front side of forehead, size 2 x 1 cm and bruise, bluish in colour over left side of floor of mouth, size 4 x 3 cm. He also found ligature mark going horizontally backwards encircling the whole neck. The doctor in his post mortem examination report, Exhibit-3, opined that Moniruddin Kaji died due to asphyxia resulting from strangulation which was ante mortem and homicidal in nature. 5. After the post mortem examination, the body of Moniruddin Kaji was buried at Bhairabnagar. And then on the asking of his relatives and family members, the appellant confessed before a large gathering of about 150 people that he killed his father. Thereupon people apprehended the appellant and gave his custody to police on its arrival. 6. 5. After the post mortem examination, the body of Moniruddin Kaji was buried at Bhairabnagar. And then on the asking of his relatives and family members, the appellant confessed before a large gathering of about 150 people that he killed his father. Thereupon people apprehended the appellant and gave his custody to police on its arrival. 6. On 14.12.2000, Mehurun Nessa (PW-1) made the ejahar, Exhibit-4 at Arunachal Police Out Post against the appellant. In the ejahar, she mentioned that appellant had murdered their father Moniruddin Kaji out of earlier grudge. S.I. Kamal Konwar (PW-10) during investigation seized one 12 feet long jute rope and stump of bamboo from the possession of appellant vide seizure list, Exhibit-1. 7. In defence the appellant pleaded false implication. He also while being examined as an accused under Section 313 of the Code of Criminal Procedure, stated that after the body of Moniruddin Kaji was cremated, villagers tied his legs and hands in the house of Samsul where they even assaulted him when he did not make the confession. The appellant further stated that he did not make any confession and his sister who wanted share in the property of their father, destroyed his homestead after the incident, as a result of which, he was living in the house of his father-in-law. 8. The Trial Court, however, disbelieved the defence of the appellant and relying mainly on his extra judicial confession, convicted and sentenced him as aforesaid. 9. In Yusuf Vs. State of West Bengal, (2011) 11 SCC 754 , the Supreme Court held that extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. 10. In yet another case, Sahadevan Vs. State of Tamil Nadu, (2012) 6 SCC 403 , the Supreme Court has held that in case of circumstantial evidence, where the prosecution relies upon an extra judicial confession, the Court has to examine the same with a greater degree of care and caution. 10. In yet another case, Sahadevan Vs. State of Tamil Nadu, (2012) 6 SCC 403 , the Supreme Court has held that in case of circumstantial evidence, where the prosecution relies upon an extra judicial confession, the Court has to examine the same with a greater degree of care and caution. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. 11. In the case at hand, the extra-judicial confession made by the appellant has been sought to be proved by witnesses Abdul Hai (PW-2), Haji Hatim Ali (PW-3), Hafij Uddin (PW-5), Saibur Rahman (PW-6), Abdul Matlib Choudhury (PW-7) and Najib Ali Kaji (PW-8). None of these witnesses are related to appellant in whom under normal circumstances, he would have confided hoping help, protection and being safeguarded. The appellant has also alleged that he did not make the confession despite his hands and legs were tied by the villagers and was beaten up in the house of Samsul. 12. Abdul Hai (PW-2) has testified that after cremation, on being enquired about the cause of death of Moniruddin Kaji, the appellant in front of as many as 150 people, confessed his guilt by stating that while his father was proceeding towards mosque, he killed him. It is, thus, clear from the evidence of this witness that appellant made the confession on being enquired in front of a huge gathering. It is, therefore, difficult to believe that his confession was without any undue influence, coercion and pressure. 13. Similar is the evidence of Hafij Uddin (PW-5). He too is a co-villager of the appellant and, according to him, appellant on being asked by relatives and family members, confessed his guilt about killing his father. It is, therefore, difficult to believe that his confession was without any undue influence, coercion and pressure. 13. Similar is the evidence of Hafij Uddin (PW-5). He too is a co-villager of the appellant and, according to him, appellant on being asked by relatives and family members, confessed his guilt about killing his father. But admittedly the prosecution has not examined even a single relative or family member of appellant or his father to prove the confession. The only sister of appellant examined by the prosecution is Mehurun Nessa (PW-1). And, she does not say that any confession was made by the appellant either before her or some relative or family members. We are, thus, unable to believe that confession, if any made by the appellant, was on the asking of relative or family members. 14. Haji Hatim Ali (PW-3) has testified that after cremation of Moniruddin Kaji, on being asked by family members, the appellant confessed his guilt by stating that he killed his father on the road and dragged the dead body in the paddy field and, thereafter, concealed the dead body with garbage. Saibur Rahman (PW-6) however gives a different version. He says that after cremation, the villagers gathered in the house of Moniruddin Kaji and, then, in the presence of villagers the appellant confessed his guilt by stating that he killed his father on the road when the later was going to the mosque by giving a lathi blow on the back side of head and, thereafter, dragged the dead body to the paddy field by tying with rope. According to Najib Ali Kaji (PW-8), after the cremation when appellant was asked in the house of Moniruddin Kaji how his father was killed, he confessed that on the previous night when father was proceeding towards mosque, then on the road he killed him by a lathi and, thereafter, dragged the dead body by tying with rope to conceal the same in the paddy field. This witness has also admitted that later when police came, the appellant confessed even before the police. 15. On scanning the evidence of Abdul Hai (PW-2), Haji Hatim Ali (PW-3), Hafij Uddin (PW-5), Saibur Rahman (PW-6) and Najib Ali Kaji (PW-8), we find that there are material discrepancies what precisely was said by the appellant and at whose instance he made the confession. 15. On scanning the evidence of Abdul Hai (PW-2), Haji Hatim Ali (PW-3), Hafij Uddin (PW-5), Saibur Rahman (PW-6) and Najib Ali Kaji (PW-8), we find that there are material discrepancies what precisely was said by the appellant and at whose instance he made the confession. According to Abdul Hai (PW-2) and Hafij Uddin (PW-5), the appellant on being asked confessed killing his father. They do not say that appellant described how he actually killed and thereafter dragged the body to the paddy field. But Haji Hatim Ali (PW-3), Saibur Rahman (PW-6) and Naijb Ali Kaji (PW-8) have stated that appellant while making confession did say that he had killed his father on the road and dragged the body to the paddy field and concealed the same with garbage. There are discrepancies in the version of even Haji Hatim Ali (PW-3), Saibur Rahman (PW-6) and Najib Ali Kaji (PW-8). Saibur Rahman (PW-6) says that appellant confessed to have given a lathi blow in the backside on the head of his father before dragging the body, but no such version is mentioned in the evidence of Haji Hatim Ali (PW-3). Moreover, according to Saibur Rahman (PW-6) and Najib Ali Kaji (PW-8), the appellant mentioned that he had dragged the body to the paddy field by tying a rope. But again Haji Hatim Ali (PW-3) does not say about this version of confession. Not only this, Haji Hatim Ali (PW-3) and Hafij Uddin (PW-5) say that appellant had made the confession on the asking of relatives and family members, whereas Abdul Hai (PW-2), Saibur Rahman (PW-6) and Najib Ali Kaji(PW-8) do not mention about asking by relatives and family members of appellant or his father or even of their presence when the confession was made. As seen above, the prosecution has not examined even a single relative or family member of appellant or his father to prove the confession. Therefore, in the fact situation of the case, a doubt is cast on the veracity and voluntariness of the confession said to be made by the appellant. This we also say so because Rosid Ali Kaji (PW-4) has admitted in his cross-examination that the house of appellant was vandalized. And this admission confirms the statement of appellant about his house being broken down. This we also say so because Rosid Ali Kaji (PW-4) has admitted in his cross-examination that the house of appellant was vandalized. And this admission confirms the statement of appellant about his house being broken down. Mehurun Nessa (PW-1) has also admitted that after the incident the appellant has not been allowed to reside in his paternal property and, therefore, he was living in the house of his father-in-law. 16. There are yet some more reasons to discard the evidence of extra judicial confession relied upon by the prosecution. Abdul Matlib Choudhury (PW-7) was the neighbour of appellant and Moniruddin Kaji. He has clearly testified that after cremation of Moniruddin Kaji, the police had come to the village and in its presence before a large gathering the appellant confessed about killing his father. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant before the police in the presence of large gathering cannot be proved against him. It is also not understandable why the appellant after killing his father in absolute secrecy would suddenly decide to make a confession on his own before a large public gathering sans his family members. Apparently, the so called extra judicial confession was extracted from the appellant and the same was neither voluntary nor natural. Sister of appellant Mehurun Nessa (PW-1) has admitted in her evidence that she has serious property dispute with him which has not been settled. She has also admitted that after the incident, appellant has not been permitted to live in the parental property. 17. For these reasons, we find the evidence of extra judicial confession utterly unsafe to uphold the conviction and sentences of appellant. The rope and lathi seized from him are common articles. No blood etc. was found on these articles to connect him with the commission of crime. The conviction and sentences of the appellant are, therefore, set aside. He be released from jail, if not wanted in connection with any other case. 18. The appeal is allowed.