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2019 DIGILAW 439 (GAU)

Sakila Sabar @ Mina v. State of Assam

2019-04-05

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. N Baruah, learned Amicus Curiae for the appellant and also heard Ms. S Jahan, learned Additional Public Prosecutor for the State of Assam. 2. An ejahar dated 16.03.2015 was lodged before the Officer-In-Charge of Mariani Police Station by one Biren Nayak, son of Bolo Nayak of Dhekiajuli Tea Estate, Line No.16, Mariani stating that at around 8 pm on 15.03.2015, a quarrel took place between a husband and a wife in a house of Line No.16 of Dhekiajuli Tea Estate. In course of the quarrel, Mina dealt a blow with an axe on the head of her husband Laxman Sabar and as a result, Laxman died at his home. 3. The informant Biren Nayak who deposed himself as PW-1 stated that he is the VDP Secretary of Dhekiajuli Tea Estate and at the relevant time, he had just arrived at his house from Bokakhat, the accused came to his house and confessed before him that she had killed her husband Laxman Sabar with an axe which she was holding. It is indicated that Laxman is the nephew of the PW-1. PW-1 further deposed that the accused arrived at his house at about 7.30/ 8 pm and thereafter he along with the accused went to the house of the deceased Laxman and found Laxman lying on the floor with injuries on his body. Thereafter, PW-1 informed the police and the police arrived at the house of the accused and seized the axe from her possession. The witness clearly states in the cross examination that he did not witness the incident. 4. XXX XXX XXX 5. Pw-6 Tileswar Nayak states that he is a line chowkidar and that on the day of the occurrence, he was present at his house having dinner and at that time, the accused arrived in his house with an axe in her hand and confessed before him that she had murdered her husband with the axe. The accused requested him to come along with her to her house to ascertain as to whether the injured had died or not. He further deposed that he accompanied the accused to her house and upon entering, he sawthe dead body of her husband with injuries over his head. The accused requested him to come along with her to her house to ascertain as to whether the injured had died or not. He further deposed that he accompanied the accused to her house and upon entering, he sawthe dead body of her husband with injuries over his head. PW-6 further states that thereafter he returned back to his house and telephoned the VDP Secretary about the incident and the VDP Secretary in turn informed the police. It is taken note of that the VDP Secretary is the PW-1 Biren Nayak. 6. Pw-4 Prakash Nagbongshi who is a shopkeeper stated that when he came out of his house for buying certain items from a nearby shop, he met the accused and questioned her as to where she was going but no reply was given. Then when he returned home, he heard certain shouting coming from his house and then Sanjay Sabar who is the brother of the accused had informed that the accused had murdered her husband. He stated that accordingly police was informed about the incident and thereupon the police arrived at the spot and he along with the police went to the house of the accused and saw the dead body with injuries. The witness further deposed that the accused went to the house of Tileswar Nayak and confessed before him that she had murdered her husband and he came to know about the same from Tileswar Nayak. 7. Pw-2 Sambaru Karmakar on the other hand stated that he had just arrived from Bokakhat along with Biren Nayak and was sitting in the compound of the house at around 9 PM when he noticed one vehicle was going towards the house of the accused. On seeing the vehicle, he came out of his house and went to the house of the accused and saw the police personnel along with Biren Nayak. He further stated that he was present along with Biren Nayak when the accused had confessed before Biren that she had killed her husband with an axe that she was holding at that time. The witness further deposed that upon being called by the police, he went to the house of the accused. 8. We have taken note of that the entire prosecution is based on the extra judicial confession made by the accused before the prosecution witnesses. The witness further deposed that upon being called by the police, he went to the house of the accused. 8. We have taken note of that the entire prosecution is based on the extra judicial confession made by the accused before the prosecution witnesses. But the manner in which the witnesses had deposed as regards the extra judicial confession of the accused shows that there is a wide variance in describing the circumstances under which the extra judicial confession was made. 9. Pw-1 Biren Nayak stated that he was at his house when the accused came to him with a dao in her hand and confessed that she had committed the offence and thereafter he along with the accused went to the house of the deceased and informed the police who came thereafter. PW-6 on the other hand stated that he was also at his house having dinner when the accused came to his house and confessed that she had committed the offence and requested him to go along with her to ascertain as to whether the injured had died or not. 10. While the PW-4 tries to testify that the accused went to the house of PW-6 Tileswar Nayak and confessed before him but at the same time also states that when he came out of his house for buying some items from the nearby shop he met the accused and questioned her as to where she was going to which the accused did not reply. PW-2 on the other hand tries to depose that he came from Bokakhat along with PW-1 Biren Nayak and was sitting in the compound of his house at around 9 pm and when he went out of his house and went to the house of the accused, he saw police personnel along with Biren Nayak and the accused had confessed before Biren. 11. All the four witnesses are at a wide variance with each other, more particularly, PW-1 Biren Nayak who states that the accused went to his house and confessed the occurrence while PW-6 states on the other hand that the accused went to his house and confessed the occurrence. We also find a wide variance in the deposition of two police personnels. 12. We also find a wide variance in the deposition of two police personnels. 12. Pw-9 Gunin Chutia stated that he is an Assistant Inspector of Police under the Mariani Police Station who was instructed by the Officer-In-Charge to go to the place of occurrence and accordingly when he proceeded to the place of occurrence alongwith one woman police constable, he met PW-1 Biren Nayak who accompanied him to the place of occurrence and on the road he had noticed the accused Sakila Sabar holding an axe in her hand. He further deposed that he had directed the accused to remain in the road and one woman police constable was asked to remain with her. 13. Pw-10 Jugal Kishore Kalita, the officer in charge of the Mariani Plice Station on the other hand states that after receiving the information, he entered GD entry and registered the Mariani PS Case No. 54 of 2015 and thereafter went to the place of occurrence and held the inquest over the dead body. The PW-10 the Officer-In-Charge states that ASI Gunin Chutia also proceeded along with him to the place of occurrence. This witness does not state anything that the accused was seen on the road holding an axe and was asked to remain there and one lady constable was required to stay along with her. 14. It being a case of extra judicial confession where all of the witnesses are in conflict with each other and in a situation where there are glaring contradictions between the two witnesses who claimed that the extra judicial confession was made before them and the further contradiction between the two police officers who themselves are not in agreement with each other as to where they have seen the accused standing holding the axe, we are of the view that it will be unsafe to arrive at a conclusion to convict the accused appellant of an offence under Section 302 IPC on the basis of the so called extra judicial confession sought to be put up by the prosecution. When a conclusion is to be made on the basis of extra judicial confession, it always has to be acted with caution although otherwise it is acceptable in law but provided the evidence rendered is consistent and believable. 15. XXX XXX XXX 16. When a conclusion is to be made on the basis of extra judicial confession, it always has to be acted with caution although otherwise it is acceptable in law but provided the evidence rendered is consistent and believable. 15. XXX XXX XXX 16. In view of above, we set aside the conviction of the accused appellant Smt Sakila Sabar @ Mina in connection with Sessions Case No.82 (J-J) of 2015 under Section 302 of the IPC by the learned Sessions Judge, Jorhat and set her at liberty forthwith, if not required in any other offence. 17. The appeal stands allowed as indicated above. 18. Send back LCRs. 19. Before parting with the record, we appreciate the valuable service rendered by Mr. N Baruah, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order.