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2016 DIGILAW 648 (GAU)

Bilbil Sabar v. State of Assam

2016-07-19

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Ajit Singh, J. The sole appellant Bilbil Sabar has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 1,000/- with default stipulation. 2. The victim of the incident is Ruknu Sabar, aged 18 years. He was brother of the appellant. 3. According to the prosecution case, on the night of 25.12.2009, around 8 PM, the appellant dealt a blow on the head of Ruknu with a dao and left him on the road. The appellant then came to the house of his mother Salmoni Sabar (PW 3) where his elder brother Manglu Sabar (PW2) was also present. There the appellant confessed before them that he had inflicted cut injury to Ruknu with a dao on the road, where he was lying. Hearing this, Salmoni, being the mother of Ruknu, rushed to the place of occurrence, which was little away from her house. There she found Ruknu lying in a pool of blood on the road. Ruknu was brought home, but he died on the following morning at about 4 AM. Manglu then went to Police Station Golaghat and lodged the ejahar wherein he named the appellant as an assailant of Ruknu. The police came to the place of occurrence and seized the dao allegedly used in the commission of crime. The seizure of dao is Exhibit 6 which mentions that no blood stain was found on it. 4. The post mortem examination on the body of Ruknu was conducted by Dr.(Mrs.) Pallavi Gogoi PW 1 on 15.6.2010. She found one incised wound on the skull with fracture of the left temporal bone. She also found bleeding signs in the left ear of Ruknu. The doctor opined that cause of death of Ruknu was shock and haemorrhage due to head injury. The post mortem examination report is Exhibit 1. 5. During the trial, the appellant abjured his guilt and pleaded that he had been falsely implicated. The appellant did not examine any defence witness. 6. There is no eye witness to the incident. And the trial court mainly relying upon the extra judicial confession made by the appellant before Manglu and Salmoni convicted and sentenced him as aforesaid. 7. 5. During the trial, the appellant abjured his guilt and pleaded that he had been falsely implicated. The appellant did not examine any defence witness. 6. There is no eye witness to the incident. And the trial court mainly relying upon the extra judicial confession made by the appellant before Manglu and Salmoni convicted and sentenced him as aforesaid. 7. The principles for deciding whether an extra judicial confession can be looked into and can form basis of conviction of an accused are— (i) The extra judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law. [See Sahadevan vs State of Tamil Nadu, 2012 Cri LJ 3014 (3019) (SC)] 8. We shall, therefore, examine whether the evidence of extra judicial confession made by the appellant before Manglu and Salmoni is reliable and trustworthy. As seen above, both Manglu and Salmoni have testified that on the night of 25.12.2009 around 8 p.m. the appellant came to their house and confessed that he had cut Ruknu with a dao on the road where he was lying. The ejahar was lodged by Manglu wherein he named the appellant as an assailant of Ruknu. But he did not mention even a single word in the ejahar about appellant making any such confession. During investigation also neither Manglu nor Salmoni in their statements recorded under Section 161 of the Code of Criminal Procedure stated anything about confession made by the appellant. It is only for the first time in the court both have testified that appellant had confessed before them that he had dealt a blow on the neck of Ruknu with a dao. Therefore, their evidence regarding appellant making a confession before them is wholly unreliable and cannot be accepted. It is only for the first time in the court both have testified that appellant had confessed before them that he had dealt a blow on the neck of Ruknu with a dao. Therefore, their evidence regarding appellant making a confession before them is wholly unreliable and cannot be accepted. Had the appellant really made a confession before them, they would have definitely mentioned this fact in the ejahar or in their statements recorded during investigation. 9. There is no other evidence against the appellant to connect him with the commission of crime. The dao allegedly seized from the place of occurrence had no blood stain on it. The seizure has also not been proved by any individual witness. 10. We, accordingly, set aside the conviction and sentence of the appellant and acquit him of the charge. The appellant is in jail. He be released forthwith, if not wanted in any other case. The appeal is allowed.