Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 684 (GAU)

Md. Dulaluddin v. State of Assam

2019-05-31

ACHINTYA MALLA BUJOR BARUA, NANI TAGIA

body2019
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. I Choudhury and Mr. S.M. Abdullah P. learned counsel appearing for the appellant. Also heard Mr. H. Sarma, learned Additional Public Prosecutor, Assam and Mr. P. Sharma, learned counsel for the informant/respondent No. 2. 2. An ejahar dated 25.09.1999 was lodged by Deenul Islam before the Officer-in-Charge of Rupahihat Police Station stating that on 25.09.1999 at about 7.45 PM while his brother Imam Hussain was coming back after keeping a watch on the fishery situated at Kaboimari field, the accused Dulal Uddin had hacked him on the neck with a khukri on the PWD road in front of his house and caused his death. Accordingly, the accused appellant was charged of an offence under Section 302 of the IPC for having committed the murder by intentionally causing the death of Imam Hussain. 3. The informant Deenul Islam while deposing as PW-1 had stated that the body of his younger brother Imam Hussain, who was a student having passed the Higher Secondary examination, was found lying on the PWD road infront of the house of the accused Dulaluddin. When he reached the spot he found the dead body of Imam Hussain and saw cut injuries on his head and back side of neck. He stated that his elder sister Afia Khatoon, Hajrat Ali and Abdul Bari and another 4 or 5 persons whom he could not recognize were present at the place of occurrence. He stated that Afia had told him that the deceased before his death had told her that the accused Dulaluddin had killed him. 4. PW-2, Afia Khatun, who was present at the place of occurence in her deposition stated that in the evening at around 7-8 PM, she heard a hue and cry where someone was saying "Mairase Mairase" which means someone was assaulted. When she rushed to the spot she saw that her brother Imam Hussain was lying on the PWD road infront of the house of Dulaluddin and was screaming. She also stated that his entire body was smeared with blood and that she saw two cut injuries on the head and a cut injury on his neck. She also stated that when she held him and asked brother what happened to you? he replied that Dulaluddin had hacked him. She also stated that Mostafa Ahmed, Hazrat Ali and Abdul Bari were waiting nearby. She also stated that when she held him and asked brother what happened to you? he replied that Dulaluddin had hacked him. She also stated that Mostafa Ahmed, Hazrat Ali and Abdul Bari were waiting nearby. She further stated that her brother breathed his last after about 15 minutes. In cross, PW-2 stated that they had not taken Imam Hussain inside the house and the police took away the dead body from the place where it was lying. 5. PW-3, Hazrat Ali, whose presence was acknowledged by PW-2, in his deposition stated that having heard a hue and cry coming from the southern direction of his house, he went running to the place and he found that Imam Hussain was lying on the road near the house of Dulaluddin and in the moonlit night he saw a cut injury on the head and two cut injuries on the neck. He deposed that on being asked by Afia as to who had assaulted him, Imam Hussain said about 6/7 times that Dulaluddin had hacked him. He further stated that Imam died after 15 to 20 minutes later. In cross, PW-3 stated that although he had held Imam Hussain but had not tried to lift and carry him to the house. He also stated that Imam Hussain could not speak any further after saying about 6/7 times that Dulaluddin had hacked him. To a suggestion, he stated that it is not a fact that it is false that on being asked by Afia, Imam Hussain had told that Dulaluddin had assaulted him. 6. PW-4, Abdul Awal in his deposition stated that on the given day about 1-1½ years back after having closed his shop which was situated near the police station, he went to the police station. While he was sitting inside the police station a person entered with a three battery torch and a khukuri and identified himself as Dulaluddin and said that he came there after giving 2/3 cut blows on the neck of a person named Imam Hussain and he could not say whether the person was alive or not. It was stated that thereafter, the person handed over the khukuri and the torch to the police officer. Accordingly, PW-4 had put his signature as a witness to the seizure list. It was stated that thereafter, the person handed over the khukuri and the torch to the police officer. Accordingly, PW-4 had put his signature as a witness to the seizure list. In cross examination, PW-4 stated that the Officer-in-Charge Keshab Mahanta was a customer of his shop and on that day, he went to the police station to collect the payment of credits and as the Officer-in-Charge was working in his table, he had been talking to him for about 15 minutes. He reiterated that the accused Dulaluddin had stated as such in the presence of the Officer-in-Charge, the 2nd Officer and other police personnel. To a suggestion, he had stated that it is not a fact that he had falsely deposed that Dulaluddin came to the police station, handed over the materials and had his statement recorded that he had cut someone with the khukuri as because of his intimacy with the police officer. 7. PW-5, Abdul Sattar stated that PW-4 Awal has a shop in front of the Rupahihat Police Station and on the day of the occurrence, after Awal had closed his shop, they went to the police station. We take note of that PW-4, had stated that he was present in the police station when the accused Dulaluddin entered and made his statement. PW-5 also stated that while they were having a conversation with the Officer-in-Charge, the accused Dulaluddin entered the police station and stated before the Officer-in-Charge that "My house is at Kaboimari. My name Dulal Uddin. I have come here after dealing 2/3 cut blows to Imam Hussain with this Khukuri on the road in front of his house. I don't know whether he is alive or not." After saying so he asked the Officer-in-Charge present to receive the three battery torch and the Khukuri which he was carrying. Thereafter, the exhibit-2 seizure list was prepared and PW-5 stated that he was also a witness to the seizure. In cross, PW-5 stated that as on previous occasions, on the given day also he had accompanied Awal to the police station, but he was unaware as to what conversation Awal was having with the Officer-in-Charge as he did not go close to the Officer-in-Charge and he was sitting on a bench outside. In cross, PW-5 stated that as on previous occasions, on the given day also he had accompanied Awal to the police station, but he was unaware as to what conversation Awal was having with the Officer-in-Charge as he did not go close to the Officer-in-Charge and he was sitting on a bench outside. To a suggestion, in cross, he had stated that it is not a fact that he had not stated before the police that Dulaluddin upon arriving in the police station has stated as indicated above. 8. PW-6, Abdul Barik in his deposition stated that while he was relaxing in his house after taking meal he heard a shout "Maria Gese" and upon hearing the shout when he went to the place of occurrence and found that Inam Hussain was lying injured in a pool of blood near the house of Dulaluddin, and at that time Hazrat and Afia Khatun were nearby. He stated that when Afia asked Imam Hussain as to who had assaulted him, Imam replied that "Dulaluddin had assaulted me." He also stated that Imam Hussain had said it about 4/5 times and breathed his last about 10/15 minutes later. 9. PW-7, Milik Chandra Gayan who was serving as a constable in the Rupahihat Police Station stated that on the given day he was on duty outside the police station, when a person came at about 9.30 PM and on being asked replied that he had cut someone. When PW-7 asked the person about his name, he replied that he was Dulaluddin and said that he had cut Imam Hussain. PW-7 further deposed that he immediately took the person concerned to the 2nd Officer, who then handed over the Khukuri and a three battery torch to the police officer. In cross, PW-7 stated that he had not given a statement to the Investigating Officer as he was not asked to do so. 10. PW-8, the Investigating Officer stated that on 25.09.1999 he was working as the 2nd Officer in the Rupahihat Police Station and that day at about 9.45 PM, Dulaluddin appeared in the police station with a khukuri in his hand and informed the ASI AK Das and Constable Milik Gayan who were on duty that he had dealt three cut blows on the neck of Imam Hussain near his house. Accordingly, GD entry No. 428 dated 25.09.1999 was recorded and exhibit-3 was the General Diary from 02.09.1999 to 05.10.1999. In cross, PW-8 stated that at the time when the GD entry was made, the accused Dulaluddin had not stated that he had cut Imam Hussain. He also stated that the witness Afia Khatun had not stated before him that she stated to Deenul that Imam told her that the accused had assaulted him. He also stated that witness Abdul Sattar had not stated before him that the accused had told him certain things. 11. PW-9, Dr. BMR Khederia who had conducted the post mortem examination had deposed the following injuries to have been found on the body of the deceased: Wounds-position and character (1) Incised wound over the Nape of Neck on right side. Size 15 cm x 2 cm x Bone deep. Underlying occipital bone is fractured and underlying membrane of brain are incised and occipital lobe is incised. (2) Incised wound over the left molar region of face encircling over the back of the skull of upto right side of size 2 cm x Bone deep underlying skull. Maxilla and molar bone is cut. (3) Wound over the back on upper part of the scapular regions, 20 cm x 2 cm x Bone deep. Both scapular are cut and the wound is extended to tip of right shoulder. 12. Based upon the aforesaid materials on record, the prosecution seeks to make out a case that firstly there is a dying declaration by the deceased before the PW-2 and PW-3 and secondly there is also an extra-judicial confession by the accused before the PW-4 and PW-5 which establishes the guilt of the accused beyond all reasonable doubt that it is the accused alone who had inflicted the injuries on the deceased which had caused his death. 13. As regards the contention of dying declaration, Mr. I Choudhury, learned counsel for the appellant has advanced his argument that considering the nature of the injuries that were sustained by the deceased, he could not have been in a proper medical state to make the dying declaration as deposed by the PW-2 and PW-3. 14. As regards the contention of the prosecution that there is also an extra-judicial confession by the accused as indicated in the deposition of PW-4 and PW-5, Mr. 14. As regards the contention of the prosecution that there is also an extra-judicial confession by the accused as indicated in the deposition of PW-4 and PW-5, Mr. I Choudhury, learned counsel for the appellant has raised the question that such extra- judicial confession was made by the accused person while he was in police custody and, therefore, the extra-judicial confession would be hit by Section 26 of the Evidence Act cannot be made a basis for a conviction against him. 15. In order to substantiate his contention that given the nature of injuries, the deceased was not in a state to make the dying declaration, Mr. I Choudhury, learned counsel for the appellant relies upon the pronouncement of this Court in Md. Sahidul Islam vs. State of Assam, (2013) 5 GLT 270, wherein in paragraph 23, a discussion was held as to whether the deceased therein was in a state to make the dying declaration statement. In that case, the deceased had sustained an injury on the neck extending from the right lateral side to the left lateral side of the neck at the level of thyroid cartilage and the size of the wound was 10" in length, 2" in breadth and 1" deep and the margins were clean cut, muscles were exposed and clotted blood was present. In the context of the above injury, the Doctor therein had given a clear opinion that after sustaining an injury of such nature on the neck, the person concerned would not be in a condition to talk. When we look into the nature of injury as depicted in paragraph 23 of Sahidul Islam (supra), we find that the injury sustained in the present case is similar, if not graver and from it, it can be inferred that the same medical opinion may also be applicable and accordingly a view can be formed that the deceased in the present case also may not have been in a position to talk. But without arriving at a definite conclusion in the present case as to whether or not the deceased was in a medical state to talk, we also take a look at the law as regards dying declaration as laid down by the Supreme Court in paragraph 20 of Waikhom Yaima Singh vs. State of Manipur, (2011) 13 SCC 125 . Paragraph 20 of Waikhom Yaima Singh (supra) is as under: 20. Paragraph 20 of Waikhom Yaima Singh (supra) is as under: 20. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW-12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement. 16. By following the pronouncement of the Supreme Court in paragraph 20 of Waikhom Yaima Singh (supra), it is discernible that although a dying declaration can be the basis for a conviction, but, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker of the dying declaration be in a fit medical condition to make it. We take note that in order to make a dying declaration acceptable, it must also be that the maker of the dying declaration was in a medically fit condition to make it. 17. The requirement of the maker of a dying declaration to be in a fit medical condition to make it brings about a corresponding duty on the prosecution to prove through reliable and cogent evidence that at the time when the deceased was stated to have made the dying declaration, he was in a medically fit condition to make it and the discharge of such duty should by itself lead to a conclusion that the maker of the dying declaration was in fact in a medically fit condition. 18. 18. In the instant case upon going though the records, we do not find any material on record which would indicate that the deceased was in a medically fit condition to make a statement and neither there is any medical opinion on the said aspect by the Doctor who had seen the actual injuries that the deceased may have been in a state to make the statement. Although DW-1, Dulaluddin the accused himself had deposed that somebody had left the deceased Imam Hussain on the road after inflicting the cut injuries and when he along with others proceeded to the place of occurrence, the deceased was in his sense at that time, and when asked who had assaulted him, he could not say anything except that he asked for some water and his wife had provided him with water and he died after drinking the water, but the same by itself is again not conclusive to arrive at any conclusion that the deceased was in a medically fit condition to make the statement. 19. DW-2, Fatema Khatun, in her deposition stated that when she heard a hue and cry, she came out of her house and saw that the deceased was lying in an injured state and when the people around had asked the deceased Imam Hussain, she did not hear him giving any reply. 20. DW-3, Chand Mia, who was also seen by DW-2 to have been present at the place of occurrence in his deposition stated that when Afia Khatun i.e. PW-2 and her husband reached the place of occurrence they held the deceased Imam Hussain and asked who had assaulted him, but although the deceased intended to reply, he could not, and although Dulaluddin's wife poured some water in his mouth, the deceased immediately stopped breathing thereafter. 21. From a reading of the evidence on record, more particularly, the evidences of DW-2 and DW-3, who are apparently independent witnesses, as well as in view of the absence of any further evidence being led by the prosecution establishing that the deceased was in a medically fit condition to make a statement, we are of the view that the prosecution had failed to prove the requirement of a dying declaration that the maker of the declaration was in a medically fit condition to make such declaration. Accordingly, the case of the prosecution by relying upon the dying declaration made before the PW-2 and PW-3 stands rejected. 22. As regards the reliance of the prosecution on the extra-judicial confession of the accused as deposed by PW-4 and PW-5, the accused appellant has raised the contention that from the evidence of PW-4 and PW-5, it is revealed that the said extra-judicial confession was made by him while he was in the custody of the police. According to the learned counsel for the accused appellant, as the extra-judicial confession was made while the accused was in the custody of the police, therefore, it would be inadmissible in evidence under Section 26 of the Evidence Act, 1872. 23. We have gone through the deposition of PW-4 who had stated that while he was sitting in the police station, a person who identified himself as Dulaluddin entered and stated that he came after giving two or three cut blows on the neck of a person named Imam Hussain and he could not say whether the person was alive or not. In cross, PW-4 stated that the Officer-in-Charge of the police station was a customer in his shop and he had gone to the police station to collect some payment credits and while he was talking with the Officer-in-Charge, the accused Dulaluddin in the presence of the 2nd Officer and the other police personnel had stated that he had committed the offence. 24. A reading of the evidence of PW-4 would go to show that the extra-judicial confession made by the accused was made inside the police station in the presence of the police. A question would therefore arise as to whether the said extra-judicial confession was made by the accused while he was in the police custody. 25. In Gurdial Singh vs. Emperor, (1932) AIR Lahore 609, the High Court of Lahore in paragraph 8, had explained the expression "police custody" as follows: "8........The expression "police custody" as used in that section does not necessarily mean formal arrest. It also includes some form of police surveillance and restriction on the movements of the person concerned by the police." 26. In Mihir Adhikary vs. The State, (1983) Cri. It also includes some form of police surveillance and restriction on the movements of the person concerned by the police." 26. In Mihir Adhikary vs. The State, (1983) Cri. L.J. 1559, the High Court of Calcutta with respect to the expression "police custody" had held as follows: "19.....the bar under Section 26 is not attracted only after the man is formally put under arrest. A man may be in custody without having been formally arrested. Custody includes a state of affairs in which the accused can be said to have come into the hands of the police or have been under some form of police surveillance or restriction on his movements by the police." 27. From the aforesaid propositions, it is discernible that one of the tests to conclude as to whether a person concerned was in the police custody or not would be whether the person was under some form of police surveillance or there was some restriction on his movement by the police. In other words, a consideration would be whether the person concerned was free in his movements to move away from police or his movements stood controlled or restricted by the police. 28. Mr. I Choudhury, learned counsel for the appellant on the other hand relies upon a judgment rendered by a Division Bench of this Court in Ganesh Bora vs. State of Assam, (2004) Supp GLT 651 wherein in paragraph 28, it was held as follows: "28. What becomes abundantly clear from the law laid down in Deomand Upadhaya (supra) is that when a person, not being in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, which has a bearing on the charge, which may be made against him, he may be deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the Evidence Act and such a person can be assumed to be constructively, in police custody." 29. Paragraph 28 of the judgment of Ganesh Bora (supra) follows the proposition laid down by the Supreme Court in State of U.P. vs. Deomand Upadhaya, (1960) AIR SC 1125, which is as follows: "12. Paragraph 28 of the judgment of Ganesh Bora (supra) follows the proposition laid down by the Supreme Court in State of U.P. vs. Deomand Upadhaya, (1960) AIR SC 1125, which is as follows: "12. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police." 30. We have noticed that in Ganesh Bora (supra) the circumstance before the Court was that the accused therein had approached the police and offered to make a statement and thereupon the police took his statement, which was exhibited as exhibit 12(1). It can be noticed that in Ganesh Bora (supra) the accused at the first stage had made himself available before the police and stated about his guilt, whereas in the second stage the police took down the statement he desired to make which was exhibited as exhibit 12(1). In the circumstance, the second stage in which the accused had made the statement which was recorded by the police and exhibited as 12(1), was construed to be a stage where the accused was in custody of the police as it was deemed to be a constructive custody. But from the circumstances in Ganesh Bora (supra) it is not discernible as to whether the accused was in the police custody in the first stage itself while he had stated as to what he had done. 31. Again we have taken note of that the conclusion of the Division Bench in paragraph 28 was made on the basis of the aforesaid proposition laid down by the Supreme Court in paragraph 12 of Deomand Upadhaya (supra). 32. 31. Again we have taken note of that the conclusion of the Division Bench in paragraph 28 was made on the basis of the aforesaid proposition laid down by the Supreme Court in paragraph 12 of Deomand Upadhaya (supra). 32. In Deomand Upadhaya (supra) the said proposition of the Supreme Court that "When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police" was made in the context where the Supreme Court also provided that "theoretical possibility of an offender not in custody because the police officer investigating the offence has not been able to get at any evidence against him giving information to the police officer, without surrendering himself to the police which may lead to the discovery of an important fact by the police, cannot be ruled out" and that "Cases like Deonandan Dusadh vs. King-Emperor, Santokhi Beldar vs. King-Emperor, Durly Namasudra vs. Emperor, In re Mottai Thevar, In re Peria Guruswami, Bharosa Ramdayal vs. Emperor and Jalla vs. Emperor to which our attention was invited are all cases in which the accused persons who made statements leading to discovery of facts were either in the actual custody of police officers or had surrendered themselves to the police at the time of, or before making the statements attributed to them, and do not illustrate the existence of a real and substantial class of persons not in custody giving information to police officers in the course of investigation leading to discovery of facts which may be used as evidence against those persons." 33. From the later provisions of paragraph 12 of Deomand Upadhaya (supra), it is discernible that the provision as regards the deemed surrender to the police by a person not in custody upon approaching a police officer investigating an offence and offering to give information leading to a discovery of fact has also to be looked at from the point of view of the theoretical possibility of the offender being not in custody as the police officer investigating the offence was not able to get any evidence against him, where the possibilities of providing the information without surrendering himself, cannot be ruled out. 34. 34. The said concept of a deemed surrender was arrived at on the premises that the cases which were under reference to the Supreme Court while the said proposition was laid are all cases where the accused persons who had made the statements leading to the discovery of facts were either in the actual custody of the police officer or had surrendered themselves to the police at the time or before making the statements attributed to them. 35. Again in Deomand Upadhaya (supra), which was an appeal by the State, the defence had raised a contention that the statement made by the accused before the police and two other witnesses on June 21 1958 that he had thrown the gandasa into a tank and that he would take it out and hand it over, was inadmissible in evidence because Section 27 of the Indian Evidence Act which rendered such statement inadmissible had discriminated between the persons in custody and persons not in custody and, therefore, violated Article 14 of the Constitution. When the said question as to whether Section 27 of the Indian Evidence Act discriminates between persons in custody and persons not in custody was referred to a larger bench, the Full Bench of the Allahabad High Court had held that Section 27 of the Indian Evidence Act created an unjustifiable discrimination between the persons in custody and persons out of custody, which violated Article 14 of the Constitution. When an appeal was carried to the Supreme Court against such view of the High Court, the Supreme Court in Deomand Upadhaya (supra) had held that the persons in custody of police officer and persons out of custody of a police officer form two distinct classes of their own and hence the provisions of Section 27 of the Evidence Act are not in violation of Article 14 of the Constitution. 36. But what is noticeable is that in Deomand Upadhaya (supra), the offence had taken place on June 1919 and the accused was arrested in the afternoon of June 20 and on June 21 he had offered to hand over the gandasa and in the presence of the Investigating Officer and certain other witnesses he waded into the tank and took out the gandasa. In the High Court, the accused took the stand that Section 27 of the Indian Evidence Act violates Article 14 of the Constitution of India as it created a distinction between a person in the custody of a police officer and that of a person not in the custody of a police officer. The High Court having accepted that Section 27 do constitute a violation of Article 14, had acquitted the accused of the offence of murder. The Supreme Court on appeal reversed the conclusion of the High Court as regards the violation of Article 14 in respect of Section 27 of the Indian Evidence Act and had set aside the order of the High Court by which the accused therein stood acquitted. 37. In the aforesaid background, the Supreme Court while deliberating upon the matter had expressed that "when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police" but the same by itself and more so in view of the subsequent deliberation in the same paragraph, it cannot be construed that it is an invariable rule that when a person not in custody approaches the police officer investigating the offence and offers to give information leading to the discovery of the fact would be deemed to have surrendered before the police. 38. Further the said expression of deemed surrender was made in the circumstance where the offer to give information leading to the discovery of a fact was made to the Investigating Officer, which means that the investigation of the matter had already started and further in a situation where the accused person offering to give the information was already arrested and was in the custody of police officer. In the instant case, a distinguishing factor would be that the investigation of the present case was not yet started and infact even the ejahar was not lodged by that time, when the accused appeared in the police station and stated that he had given two or three cut blows on the neck of the deceased. 39. In the instant case, a distinguishing factor would be that the investigation of the present case was not yet started and infact even the ejahar was not lodged by that time, when the accused appeared in the police station and stated that he had given two or three cut blows on the neck of the deceased. 39. Every person walking into the police station cannot be deemed to have surrendered merely because he had walked in, and at the best his deemed surrender would be complete only upon such person making and completing his statement, which can lead to a conclusion that he had committed the offence. 40. In view of the above, the reliance of the accused appellant upon the provisions of paragraph 28 of Ganesh Bora (supra) to substantiate that he was in the police custody at the time when he said before the police that he came in after giving two or three blows on the neck of the deceased cannot be accepted. 41. In the instant case, we find that the evidence of PW-4 simply reveals that the accused appellant came into the police station with a khukri in his hand and stated that he came after giving two or three cut blows on the neck of a person by name Imam Hussain. 42. In the sequence of events, as long as the accused appellant walked into the police station, he was within his own liberty to go away from it without stating anything and while the accused appellant was making the statement that he came after giving two or three blows to the person named Imam Hussain, he was again within his liberty not to make and complete the statement and go away from the police station. But once the accused appellant had completed his statement that he had given two or three blows on the neck of the person Imam Hussain, it can be said that from that moment onwards his liberty to move away from the police station may have been curtailed and it would depend on the further action to be taken by the police upon such statement being made. 43. 43. Such a situation would also bring the case of the accused appellant within the purview of what was accepted by the Supreme Court in paragraph-12 of Deomand Upadhaya (supra) that it cannot be ruled out that an offender may not be in police custody or may not have surrendered as because the police officer investigating the offence was not able to get any evidence against him without the information being given by the offender himself. 44. In any view of the matter, the circumstances in which the accused appellant had stated that he came after inflicting two or three blows on the neck of the deceased Imam Hussain, which was deposed by PW-4, as revealed from the evidence on record, does not indicate that at the time of making the statement the accused appellant was under the control or he was influenced by the police authorities in any manner. 45. The manner in which the accused appellant came inside the police station and told that he had given two or three cut blows on the person named Imam Hussain also does not bring the accused appellant to a situation where he had made any statement before the police which was recorded and exhibited against him, as was the factual situation in Ganesh Bora (supra). 46. In view of the above, we are of the view that in the present case the accused appellant up to the stage of completing his statement that he had given two or three blows on the neck of the person named Imam Hussain, was not in the police custody, although he may have been there in the presence of the police personnel. 47. As we have concluded that at the stage when the statement was made that he had given two or three blows on the neck of the person named Imam Hussain, the accused appellant was not in police custody, the extra-judicial confession to have been made by him as deposed by PW-4 , cannot be said to have been made when the accused appellant was in poli8ce custody and accordingly, such extra-judicial confession as deposed by PW-4 in his deposition would not be unacceptable under the provisions of Section 26 of Indian Evidence Act. 48. 48. The law relating to acceptability of an extra-judicial confession is that the confession was reliable and further its credibility is enhanced if the circumstances and the state of affairs which was stated to have been narrated by the accused is corroborated by some other evidence. 49. As regards the reliability of PW-4, we do not find anything as such in the evidence on record which would cast a doubt that the deposition as regards the extra-judicial confession is not to be relied upon. PW-4 is an independent witness whose presence at the place where the extra-judicial confession was made cannot be said to be improbable for any reason and secondly his presence therein had been corroborated by PW-5, who is again an independent witness. When PW-5 states that PW-4 has a shop in front of the Rupahihat Police Station and after closure of his shop he and PW-4 both went inside the police station and PW-4 having deposed that he regularly goes to the police station to receive the credit payments accrued in course of the day after closure of his shop, we do not find any material as such to disbelieve the PW-4. 50. As regards corroboration the medical evidence reveals that there are three cut injuries around the neck portion of the deceased, which again is corroborated by the evidence of the other prosecution witnesses and in the extra-judicial confession also the accused stated that he came after giving two or three blows on the neck of the deceased. Further the time of the occurrence and the time when the accused appellant entered the police station are also not incompatible with each other. 51. In view of such corroboration, which is consistent with all the other evidences available on record, and also considering the reliability of PW-4 as indicated above, we are inclined to accept the extra-judicial confession made by the accused appellant as deposed by the PW-4. 52. Further, PW-8 the Investigating Officer as well as PW-7 a police personnel in the police station had deposed that the accused appellant entered the police station with a khukri in his hand. Such evidence that the accused appellant entered the police station with a khukri in his hand also corroborates the evidence of extra-judicial confession as deposed by PW-4. 53. Further, PW-8 the Investigating Officer as well as PW-7 a police personnel in the police station had deposed that the accused appellant entered the police station with a khukri in his hand. Such evidence that the accused appellant entered the police station with a khukri in his hand also corroborates the evidence of extra-judicial confession as deposed by PW-4. 53. In view of the above, we arrive at a conclusion that the chain of events in the circumstance is complete to prove it beyond all reasonable doubt that it is the accused appellant who had given the three fatal blows on the neck of the deceased which resulted in his death. 54. Considering the nature of the injuries comprising of deep cut wounds with a sharp cutting weapon on the backside of the neck and in the absence of any other circumstances in favour of the accused appellant, we are of the view that no mitigating circumstance had been made out to bring the act of the accused appellant within any of the exceptions to Section 300 of the Indian Penal Code. Accordingly the conviction of the accused appellant in the judgment dated 29.03.2018 of the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 171(N)/2000 convicting the accused appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs. 10,000/- in default thereof rigorous imprisonment for another six months is upheld. 55. The appeal stands dismissed. 56. Send down the LCR.